EARLY COURTS OF PENNSYLVANIA. 



y^il r^^-' 



THE EARLY COURTS 

OF 

PENNSYLVANIA 



BY 

WILLIAM H. LOYD 



/ 



OF THE PHILADELPHIA BAR; GOWEN FELLOW IN THE LAW 
SCHOOL OF THE UNIVERSITY OF PENNSYLVANIA 



BOSTON 

THE BOSTON BOOK COMPANY 

1910 



Cr^sM^ 



^v" 



Copyright, 1910 
By the university OF PENNSYLVANIA 



The Riverdale Press, Brookline, Boston, Mass. 



€^CI.A275930''- 



UNIVERSITY OF PENNSYLVANIA 
LAW SCHOOL SERIES 



NUMBER 2 



T7 ACH volume in this series has been made a 
publication of the School of Law of the 
University of Pennsylvania, by a vote of the 
Law Faculty. The authors are connected with 
the school as members of the teaching force, 
fellows, or graduate students. 

The object of the University is to promote 
the scientific study of legal problems — histori- 
cal and practical, and to assist in the improve- 
ment of the law. 



" Yes, you have shown us a representation of freedom. 
True. But you are content with it in a world that moves 
by computation some considerable sum upward of sixty 
thousand miles an hour." 

Dr. Julius von Karsteg to Harry Richmond 



PREFACE. 



This account of the early courts of Pennsyl- 
vania is the outcome of some lectures delivered 
as an auxiliary course in the Law School of the 
University of Pennsylvania. Their purpose was 
to describe briefly the establishment and de- 
velopment of the courts in the colonial period. 
That our ancestors should have expressed such 
profound admiration for the common law while 
deviating so widely from it in practice, must have 
puzzled many who have not learned to put a 
true value upon the flights of forensic oratory. 
History alone supplies the key, and colonial 
legal history has not received the attention it 
deserves. The absence of reports, the destruc- 
tion of many records and the inaccessibility 
of those that have been preserved, have all 
contributed to discourage work in a field usually 
abandoned to the antiquarian. But as American 
law increases in importance, the story of its 
obsciire beginnings will require careful considera- 
tion. 



vi PREFACE. 

The earliest emigrants, caring little for the 
common law except those principles associated 
with Magna Charta, stamped their peculiar 
notions upon our jurisprudence in a way that 
the second and more conservative generation 
of colonists was unable to eradicate. The 
Revolution, and the constitutional develop- 
ment that followed, concentrated attention 
on public rather than on private law, which in 
many of the States has been allowed to develop 
haphazard, along the lines of least resistance. 
Before it will be possible to classify and discuss 
American colonial law in a thorough and 
scientific manner, much preliminary work must 
be done in local fields, and, from material so 
collected, there may be derived finally a rational 
account of our legal institutions. 

It is in this spirit that the following study has 
been prepared. The original lectures were 
undertaken, at the suggestion of Dr. William 
Draper Lewis, Dean of the Law School, and 
material sought in the records without, at first, 
a sufficient realization of their lack of coherence. 
It was found that while some special topics 
had been carefully discussed, and while others 
were treated incidentally, in works having a 
different object in view, there was no concise 



PREFACE. vii 

statement of the origin and growth of the courts 
and their jurisdiction based directly on the 
statutes and archives of the commonwealth. 
Such a narrative, it was thought, might prove 
useful to those who have not found time to 
become acquainted with the scattered literature 
of the period described. The treatment is 
not exhaustive; that would be impossible in a 
volume of this size, but it is believed that the 
information contained will be found accurate, 
as it is based on a careful examination of the 
public records. While the labor involved was 
greater than anticipated, the result by no means 
does justice to a deeply interesting topic. 

WILLIAM H. LOYD. 
BiDDLE Law Library, May 10, 1910. 



NOTE. 

The work cited as Charter and Laws of Pennsylvania contains 
the Duke of York's Laws and the Acts of Assembly prior to 
1700. The Statutes at Large of Pennsylvania, as published 
to date, begin at 1700 with Volume II and end at 1793 with 
Volume XIV. Compilations of the laws of the State by Dallas 
and Smith are also cited for acts in the last years of the eighteenth 
and early years of the nineteenth centuries. The regular series 
of Acts of Assembly which begin with 1800 are cited, according 
to local custom, as pamphlet laws, abbreviated "P. L." The 
records of the court at Upland were published by the Historical 
Society of Pennsylvania in 1860; the records of the court at 
New Castle by the Colonial Society of Pennsylvania in 1904. 
This society is about to publish the records of the courts of 
Chester County which, unfortunately, are not yet available 
for reference. For the convenience of the general reader, 
illustrations have been taken from published records, when 
practicable, rather than from manuscript sources. The dates 
are given just as they appear in the records without accounting 
for the discrepancies due to the reform of the calendar in 1752. 



CONTENTS. 

Chapter I 
The Courts in the Seventeenth Century ... 1 

Chapter II. 

The Courts in the Eighteenth Century Prior to 

the Revolution - . . . 74 

Chapter III. 

The Courts from the Revolution to the Revision 

of the Civil Code 122 

Chapter IV. 
Equity in Pennsylvania 159 

Chapter V. 
The Register's Court and the Orphans' Court . 212 

Chapter VI. 
The Laying Out and Opening of Roads by Viewers 241 



THE EARLY COURTS 

OF 

PENNSYLVANIA. 



CHAPTER I. 



For more than two hundred years the courts of prov- 
ince and state have administered justice to the inhabi- 
tants of Pennsylvania. Created under the peculiar 
conditions surrounding the foundation of the colony, 
subjected to numerous legislative experiments, their 
organization and practice present many peculiarities 
that can only be understood by a reference to their 
history. This history has been sadly neglected owing 
partly to the paucity of material, and partly to lack 
of interest. The founders were more bent on develop- 
ing the resources and organizing the administration 
of the great territory that had come under their control, 
than on preserving the records of their proceedings 
for the benefit of posterity, while their immediate 
descendants, living in an uncritical age and possessed 
with a passion for rhetoric to the exclusion of history, 
carelessly permitted the records of the preceding gen- 
eration to be scattered or ruthlessly destroyed. Docu- 
ments that would now be regarded as precious memorials 
of the past, and that would throw valuable light on 
our early institutions, were used to feed the fires in 
the old courthouse.^ Fortunately, sufficient fragments 

^Cromwell v. The Bank, 2 Wallace, Jr. Reports, 569 (1853), 
at page 589. 



2 EARLY COURTS OF PENNSYLVANIA. 

have escaped and found their way into the collections 
of individuals and societies to enable us, with the aid 
of the state archives, to present, if not a picture, at 
least a sketch of the judicial organization and procedure 
in a period which the rapidity of our national develop- 
ment has made more remote in thought than in time. 

As the firs : organized settlements in th territory now 
ncluded in the state of Pennsylvania were those of the 
Swedes and the Dutch, so the first courts of justice 
were established under their auspices. To give a com- 
plete account of their administration would involve a 
ted ous narrative of the political vicissitudes of these 
unsuccessful colonies, which never developed to the 
point of establishing lasting institutions. In fact, 
throughout their stormy history the judicial and execu- 
tive functions of the various governors and local officials 
are scarcely distinguishable. 

The first Swedish settlement was hardly more than a 
trading post, and, if a court in the proper sense of that 
word existed, it must have been established by the 
governor, John Printz, who arrived at the colony on 
the Delaware in 1643 with instructions to "decide all 
controversies according to the laws, customs and usages 
of Sweden" and in all other things to "adopt and follow 
all the laudable manners, customs and usages of the 
kingdom of Sweden," the crown of which was then 
worn by Christina, the daughter of the great Gustavus 
Adolphus. 

Printz established the seat of government on the 
island of Tinicum, but he must have found his duties 
onerous, for he wrote several times to obtain the services 
of a learned and able man to administer justice and 
attend to the law business.^ The territory, however, 

1 "I have several times solicited to obtain a learned and able 
man to administer justice and attend to the law business." 
Report dated February 20, 1647, to the West India Company. 
Records of Court at Upland, Introduction, p. 29; V Pennsylvania 
Archives (2d Series), 766. 



EARLY COURTS OF PENNSYLVANIA. 3 

passed into the possession of the Dutch West India 
Company, and Swedish law ceased to be a factor in the 
development of Pennsylvania, although the Swedes 
were permitted to retain their own magistrates, under 
the supervision of the officials of their conquerors.^ 

In 1655, a vice director hip of the "South River" 
was created, and Jean Paul Jacquet, a former agent 
of the company in Brazil, was appointed to the office.^ 
Andries Hudde, who had for some years managed the 
earlier Dutch settlement on the Delaware, was named 
as secretary, a commissary was appointed, and these, 
with two others, formed a council for general adminis- 
tration, as well as a court for the trial of civil and 
criminal cases, with right of appeal in all important 
matters to the director and council in New Amsterdam. 
The minutes of this court from December, 1655, to 
March, 1657, have been preserved, and afford some 
interesting information upon the methods and procedure 
of the Dutch justices, as well as the social condition of 
the colonists.^ Actions for the recovery of small debts 
are most frequent on the civil side, while on the criminal 
side, complaints for minor breaches of the peace are 
the principal matters disposed of. The striking features 
of these trials are the mild and paternal attitude of the 
court, the efforts made to obtain amicable adjustments 
of disputes, the merciful treat m.ent of offenders, and 
the leniency to unfortunate debtors. 

The following case, taken from the minutes of the 
court, July 7, 1656, is interesting as an early attempt 
to apply the principles of set-off: — 

iVII Pennsylvania Archives (2d Series), 511, 531. This 
policy seems to have alarmed the home authorities. VII 
Pennsylvania Archives (2d Series), 555, 

2 Hazard's Annals of Pennsylvania, 205. 

3 New York Colonial Documents, Vol. XII, 133. 



4 EARLY COURTS OF PENNSYLVANIA. 

"Jan Flaman appears before the council against the wife of 
Tobias Willeborgh, and demands payment for a shirt lost by 
her, the defendant, and for passage from the manhattans 
hither, viz. 

for the shirt 14 

for her passage & freight 16 

30 
The defendant says, that she lost on the voyage, being wrecked 
with the bark, a chest containing four shirts, one coat of red 
duffel, one underwaist coat, and a powder horn with copper 
mountings, valued by her, the defendant at fl 28. 
Paid to plaintiff in money fl 4 
From above fl 28 

32 
The defendant is told that the freight shall be set off against 
her lost goods; in regard to the shirt, she is ordered to pay 
plaintiff four guilders 15 stivers." ^ 

A case heard on August 2, 1656, gives new and interest- 
ing grounds for a continuance: — 

"Before the council appeared Jacob Crabbe against Robert 
Martyn and complained that he Robert Martyn had shot and 
killed his, the plaintiff's pig. Defendant answers that fourteen 
days ago he entreated the plaintiff to pen up his hogs as the same 
did great damage to his corn. Plaintiff upon being asked what 
he wanted, answers, 'Payment for his pig.' It was proposed 
to the parties, that plaintiff shall take the pig, as it is still living, 
but that if it should die, each one shall keep his action in the law 
unprejudiced.* 

Perhaps it may not be considered out of place to 
refer to a case tried September 13, 1655, in New Amster- 
dam as illustrating the pleasant side of judicial office 
in Knickerbocker days: — 

"Jan Hackius Plf. v/s Jacob van Couwenhoven Deft. The 
Plf. demands paymands of 1150 fl. on account of a promissory 
note, dated July 1, 1655, payable in beer and distilled liquors. 

1 New York Colonial Documents, Vol. XII, 149. 

2 New York Colonial Documents. Vol. XII. 150. 



EARLY COURTS OF PENNSYLVANIA. 5 

Deft, says his beer is ready. Plf. denies, that the beer is ready, 
and enquires if it be allowable to mix strong with small beer, 
and says the beer is not fit to be removed. Couwenhoven 
denies the same, and requests the Court to be pleased to test 
the same after adjournment of the session and then decide. 
Parties being heard, Jacob van Couwenhoven was ordered to 
pay Plf. the residue according to contract and obligation; And 
the beer having been tested after adjournment of the Court the 
same was pronounced good. The Plf. was therefore ordered to 
receive the same."^ 

Would Professor Wigmo re call this autoptic profference ? 

As in the other Dutch settlements the principal prose- 
cuting officer of the district was the schout whose duties 
combined those of a sheriff and district attorney; he 
convened the justices' courts and executed the orders 
of the states-general and officials of the company. 
Where local courts were established the justices were 
known as schepens. Their jurisdiction extended to the 
rendition of judgment for sums under one hundred 
guilders. In cases exceeding that amount the party 
aggrieved was allowed an appeal to the director general 
and council of the New Netherlands. The schepens 
also had authority to pronounce sentence in criminal 
cases subject to appeal.^ 

In 1656 the Dutch India Company, being deeply 
in debt and compelled to obtain aid from the city of 
Amsterdam, transferred to that city a portion of their 
possessions on the Delaware. This colony was called 
New Amstel, special inducements were held out to 
emigrants, and a town government was established 
consisting of a schout, three burgomasters and five to 
seven schepens, a formidable body for the government 
of a village of less than five hundred inhabitants. Thence - 

^ Records of New Amsterdam Court, Vol. I, 358. 

2 O 'Callahan's History of New Netherlands, Vol. I, 220; 
VII Pennsylvania Archives (2d Series), 521, 528, 534; Hazard's 
Annals of Pennsylvania, 221. 



6 EARLY COURTS OF PENNSYLVANIA. 

forth the jurisdiction on the river was divided between 
the officials of the company and those of the city's 
colony.^ 

Laws and ordinances were sent from New Amsterdam 
to the Delaware and there proclaimed for the general 
government of that territory. With occasional modi- 
fications, they were the same as prevailed in the older 
settlements on the Hudson, the ordinances of the West 
India Company, the civil law, the enactments of the 
states-general, and the customs of Holland. 

In the matter of granting divorces the magistrates 
of the New Netherlands exercised a liberal policy in 
keeping with the doctrines of the Reformation, a policy 
that was not destined to survive the English Conquest.^ 
Traces of this jurisdiction are found on the Delaware. 
Vice Director Beekman, writing to the director general 
under date of April 28, 1660, mentions a Finnish couple 
who lived together in constant strife: "The wife receives 
daily a severe drubbing, and is often expelled from the 
house as a dog. This treatment she suffered a number 
of years; not a word is said in blame of the wife, whereas 
he, on the contrary, is an adulterer; on all of which 
the priest, the neighbors, the sheriff and the commis- 
saries appealed to me, at the solicitation of man and 
wife that a divorce might take place and the small 
property and stock be divided between them."^ 

He asks for orders but the reply is not given. 

In 1662, the Finnish priest Laers, or Laurentius, 
Carels, whose wife had eloped with Jacob Jough, married 
again before he had obtained letters of divorce from 
the council, performing the ceremony himself. He was 
condemned by the commissaries to pay a fine of two 

1 Hazard's Annals of Pennsylvania, 220; V Pennsylvania 
Archives (2d Series), 459. 

2 Howard's Matrimonial Institutions, Vol. II, 376. 

3 VII Pennsylvania Archives (2d Series), 634. 



EARLY COURTS OF PENNSYLVANIA. 7 

hundred guilders and his new marriage declared illegal, 
but was advised to apply to the director general for a 
divorce.^ 

At the last period of the Dutch dominion (1673-4) 
three judicial districts were recognized, one for the 
inhabitants of the Whore kill, between Cape Henlopen 
and "Boomties" (Bombay) Hook, another for New 
Amstel, from Bombay Hook to Kristina Kill, and a 
third for Upland from Kristma Kill "unto the head of 
the river. "^ Roughly speaking, the first of these dis- 
tricts corresponds to the lower counties of the state of 
Delaware, the second to New Castle County, in that 
state, and the third to so much of the southeastern 
part of Pennsylvania as was then settled, extending to 
the falls at Trenton. 

The humble and widely scattered settlers seldom 
had time or occasion to indulge in law suits involving 
questions or amounts beyond the limited jurisdiction 
of the schepens, but such disputes as did arise were the 
cause of endless discussion and much heartburning 
between the officers of the West India Company and 
those of the city of Amsterdam, whose complaints and 
recriminations distracted the governor at New Amster- 
dam. In justifying the action of the council in such 
a contest Peter Stuyvesant writes to the directors 
in Holland: "We might here remark upon and continue 
with the insults and slights, heaped on your Hon^^® 
Worships' servants in their capacity as supreme judges 
of this province, but will desist for the present to keep 
ourselves above party spirit and avoid further dis- 
pleasures." Appeals heard and decided by the governor 

1 Hazard's Annals of Pennsylvania, 330, 333; VII Pennsyl- 
vania Archives (2d Series), 670, 672, 680. 

2 Hazard's Annals of Pennsylvania, 407; VII Pennsylvania 
Archives (2d Series), 758; Whorekill is a ccmiption of Hoorn 
Kill, Sussex Records (Turner), 2. 



8 EARLY COURTS OF PENNSYLVANIA. 

and council seem to have been carried to the directors 
in Holland, and occasionally reversed to the chagrin of 
Stuyvesant, who thus reproaches his employers in a 
letter dated July 21, 1661:— 

"Your Noble Worships say in regard to the third and last point 
concerning the appeal and the reversing of a sentence pronounce d 
against one Jan Gerritsen van Marcken, that we would have 
done better not to meddle with this case. Honorable Worships! 
It surpasses our conception to understand how to avoid such 
proceedings and the reproaches following them, how to satisfy 
your Honors and the parties to the suit without exposing our- 
selves to blame for refusing a hearing and justice, as long as it is 
your Honble Worships' order, and pleasure, that appeals are 
to be brought before your Honors' humble servants and we 
declare with good conscience that in this and the abovementioned 
case we have not aimed at nor intended anything else, but what 
we in our humble opinion judged to be just, equitable and our 
duty: God the Ominiscient is the witness for it: we have no 
knowledge of it, that the Sheriff van Sweeringen was to be 
forced here, to ask pardon of God and justice in addition to 
what his opponent had demanded: we refer to the sentences 
regarding this point." ^ 

Dutch rule and Dutch laws, however, were not 
destined to endure on the Delaware. On the twelfth 
of March, 1664, Charles II of England granted to his 
brother, the Duke of York (afterwards James II), the 
territory comprising the New Netherlands. 

The charter to James is neither as elaborate nor as 
carefully drawn as that granted eighteen years later 
to Penn. The standing committee of the privy council 
for the foreign plantations had been but recently 
organized and the Crown lawyers were just beginning 
to realize that vast problems, legal and social, were 
connected with the administration of the colonial 
domain. It has been well said that in the colonial 
charter will be found the germ of American constitutional 

1 VII Pennsylvania Archives (2d Series), 662. 



EARLY COURTS OF PENNSYLVANIA. 9 

law, whether of the trading company or proprietary 
type, since it contained beside the grant of territory 
a scheme of political organization.^ It is a significant 
fact that the charter of James contains no reference 
to a legislative assembly; the Duke is given "full and 
absolute power and authority" to "correct, punish, 
pardon, govern and rule" the inhabitants of the terri- 
tories according to such laws, ordinances and directions 
as he should establish, not contrary to the laws of 
England, reserving to the Crown the right to hear and 
determine appeals from judgments or sentences there 
given. ^ 

With the history of the conquest of the New Nether- 
lands we are not directly concerned; suffice it to say 
that Sir Robert Carr who was charged with the reducing 
of the Dutch possessions on the Delaware arrived at 
that river in the latter part of the year 1664, and with- 
out much bloodshed obtained the surrender of the 
colony. Carr established the seat of government at 
New Amstel, the name of which was now changed to 
New Castle, and under the terms of his agreement with 
the inhabitants, continued all the magistrates in their 
offices upon their taking the oath of allegiance.^ The 
wise policy of enlisting the local authorities in support 
of the new government was continued, and Dutch and 
Swedish magistrates administered justice to their 
neighbors until long after the arrival of William Penn. 

The period of the Duke of York's rule is of more 
importance in our judicial history than would at first 
be supposed. It was a formative period, and the law 
and practice as then developed had a marked influence 
upon the early legislation of the province of Pennsylvania. 

1 Constitutional law by S. E. Baldwin in Two Centuries 
Growth of American Law, IL 

2 V Pennsylvania Archives (2d Series) , 494. 
^ V Pennsylvania Archives (2d Series), 544. 



10 EARLY COURTS OF PENNSYLVANIA. 

The establishment of EngHsh jurisprudence in the 
colonies on the Delaware was not the work of a day, 
but a gradual process, involving compromises with 
the established customs and practices of the inhabitants, 
the gradual transformation of the Dutch schouts and 
schepens into their English equivalents, the education 
of the magistracy in the rudiments of English court 
practice "and the actual modification of many of the 
rules of the common law, both as to property and 
practice, to meet the necessities of the primitive social 
conditions in the New World. 

The legal conceptions of the new rulers found ex- 
pression in a brief code promulgated at Hempstead, 
Long Island, in 1664, which, quaint and unsystematic 
as it may seem to us now, contained several notable 
departures from the common law well worth careful 
study by those interested in legal history. 

The principle seems to have been generally accepted 
in the American colonies that the elements of public 
and private law should be stated in a concise and 
permanent form. Whether originating with the people, 
as in the case of the "Body of Liberties" in Massachusetts, 
or with the proprietors, as in the case of the "Funda- 
mental Constitutions" of the Carolinas, the tendency 
of early colonial law was toward codification.^ And 
what could be more natural than that both adventurers 
and proprietors should dream of creating little Utopias 
by force of the statute book? New conditions, too, 
required new measures, the laymen who administered 
justice required brief and simple handbooks for their 
guidance, and the mixed population a homogeneous 
system in the place of their various ancestral customs. 
Such a code was the Duke of York's Laws which is 
stated to have been "Collected out of the Severall Laws 

^ Reinch's Colonial Common Law, reprinted in Select Essays 
in Anglo- American Legal History, Vol. 1, 367. 



EARLY COURTS OF PENNSYLVANIA. 11 

now in force in his Majesties American Colonyes and 
Plantations." Prior to the conquest of the New Nether- 
lands, Colonel Nicolls, the newly appointed governor, 
and Sir Robert Carr had been appointed members of a 
commission for the visitation of the New England 
colonies, a part of whose duties it was with diligence and 
care "to peruse the collection of the lawes published 
in those colonies during the late usurping Government, 
or at any tyme before or since; to the end that upon 
examination thereof you may disceme both the indecent 
expressions and material and important points and 
determinations in them, which are contrary to our dig- 
nity and to the lawes and customes of this realme and 
to the justice thereof; all which they have obliged 
themselves to cancele and repeale; and if the same bee 
not already done, you are in the first place to cause 
it to be done."^ 

The commissioners were also empowered to hear all 
complaints and appeals in matters military, criminal 
and civil, but it was left to their discretion whether 
they would first visit New England or reduce the Dutch 
to submission. Having carried out the latter project 
it became necessary at once to organize the captured 
territory. The greater part of Long Island was already 
occupied by settlers from New England and, having 
obtained copies of the laws of Massachusetts and New 
Haven, Nicolls^ with the assistance of the secretary 



1 V Pennsylvania Archives (2d Series), 501, 507. 

2 Broadhead's History of New York, Vol. II, 66. Governor 
Nicolls writes to Clarendon April 7, 1666: "My Lord, I have 
remitted for confirmation to his Royal Highness the present 
Lawes of this Colony collected out of the Lawes of the other 
Colonyes, onely with such alterations as may revive the memory 
of old England amongst us, ff or Democracy hath taken so deepe 
a roote in these parts, that ye very name of a Justice of the 
Peace is an abomination." New York Historical Society Collec- 
tions, 1869, p. 75. 



12 EARLY COURTS OP PENNSYLVANIA. 

and some of the magistrates prepared a code which, 
as a comparison will show, drew much of its material 
from these sources with, in the governor's words, "a 
relaxation of their severity in matters of conscience 
and religion." The cruel laws against heretics and 
against "a pernicious sect commonly called Quakers"^ 
were omitted, as well as many other provisions relating 
to the Puritan discipline. The "capital lawes" were 
transcribed from the Massachusetts code, which was 
avowedly based on the Old Testament, but the offense 
of witchcraft was omitted and while the clause making 
it a capital offense for children above sixteen years 
old to curse or smite their parents was retained, the 
succeeding clause, enabling a man having a stubborn 
or rebellious son to bring him to the magistrates to be 
put to death in accordance with Deuteronomy, xxi, 18, 
was rejected. 

As in its prototypes, the code is divided into titles 
arranged in alphabetical order but the classification is 
neither logical nor consistent, a failing noticeable in 
more modern and more pretentious legal productions. 
Much, however, that was adopted was both valuable 
and practical and, with additions from English and 
Dutch sources, was moulded into a form that perhaps 
met best the needs of civil administration in a newly 
organized proprietary province. Indeed we may recog- 

1 Laws of Massachusetts Colony (1672), 61. The Act of 1661 
provided that "Vagabond Quakers" should "be stripped naked 
from the middle upwards, and tyed to a Carts tail, and whipped 
through the Town, and from thence immediately conveyed 
to the constable of the next Town towards the borders of our 
jurisdiction, as their warrant shall direct, and so from constable 
to constable till they be conveyed through any the outward- 
most Towns of our jurisdiction." If the Quaker returned he 
was to be branded and whipped as before and if he returned 
again suffer death. The Act of 1662 reduced the whippings 
to three towns. 



EARLY COURTS OF PENNSYLVANIA. 13 

nize in this as well as other provincial codes a kindred 
spirit, which without attempting to exploit many theo- 
retical views on jurisprudence, drew upon a common 
source for so much of English law and custom as could 
reasonably be applied to the social and economic condi- 
tions of frontier life. 

It is most difficult to determine how far the common 
law was viewed as a subsidiary system when not replaced 
by colonial statutes. The accepted theory that the 
colonists brought with them and adopted so much of 
the common law as was applicable to their condition^ 
is not wholly borne out by the facts. As the colonies 
increased in wealth and population, as their commercial 
relations with the mother country became more com- 
plex, the doctrines of the common law were necessarily 
drawn upon to fill up the gaps in the early legislation, 
and, as friction with the home government increased, 
the popular party appealed more and more to the 
common law, particularly to Magna Charta, as the 
muniment of political liberty and birthright of English- 
men, an appeal which writers such as Blackstone 
sought to evade by applying to America the status of 
conquered territory.^ 

Even more obscure is the question of the applicability 
of English statutes, but the principle w^as generally 
accepted that acts of parliament passed after the settle- 
ment of a colony were not in force there unless the 
words of the act expressly included the territory so 



1 Story, J., in Van Ness v. Packard, 2 Peter's Reports (U. S.), 
144 (1829); Commonwealth v. Knowlton, 2 Massachusetts 
Reports, 530 (1807); Bogardus v. Trinity Church, 4 Paige's 
Reports (N. Y.), 197 (1833). 

2 Blackstone's Commentaries Introduction, page 107, and 
Notes of American Editors, particularly Hammond; Johnson 
V. Mcintosh, 8 Wheaton's Reports (U. S.), 582 (1827). 



14 EARLY COURTS OF PENNSYLVANIA. 

occupied,^ although in some instances local usage would 
seem to have given the force of law to a statute not so 
extended. The subject is difficult and intricate.^ But 
at the early period now under discussion the tendency 
was to regard the elementary codes as approximately 
complete statements of the law. For matters not cov- 
ered New England referred to the "Word of God" as 
contained in the Scriptures, while in the south the 
inclination was to claim a share in the laws of England, 
but in either case the application of these vague prin- 
ciples left in the local magistrates a very wide discretion 
which in the absence of professional criticism was checked 
and restrained only by legislative action or the influence 
of the governor and council.^ In the Duke of York's 
Laws the difficulty is met by the following clause : — 

"In regard it is almost impossible to provide sufficient Lawes 
in all Cases, or proper Punishments for all Crimes. The Court 
of Sessions shall not take further Cognizance of any Case or 
Crimes, whereof there is not provition made in some Lawes but 
to remit the Case or Crime, with the due Examination and proof 
to the Next Court of Assizes where matters of Equity shall be 
decided, or Punishment awarded according to the discretion 
of the Bench and not contrary to the known Laws of England."* 

An analysis of the substantive provisions of this code, 
however interesting, is outside of the scope of this dis- 



1 Anonymous, 2 Peere Williams's Reports, 74 (1722); Blankard 
V. Galdy, 2 Salkeld's Reports, 411 (1694); Anonymous, 1 Dallas's 
Reports, 1 (1754). 

2 Chalmer's Opinions, 208; Report of the Judges, 3 Binney's 
Reports, 595 (1808); Pepper & Lewis's Digest of Pennsylvania 
Decisions, Vol. XX, col. 35347; Commonwealth v. Burrell, 7 
Pennsylvania Reports, 34 (1847). 

^ Sioussat's English Statutes, reprinted in Select Essays in 
Anglo-American History, Vol. I, 416. 

* Charter and Laws of Pennsylvania, So. Upon such com- 
plaints of inconveniences and omissions the laws were several 
times amended. Charter and Laws of Pennsylvania, 58, 60, 68. 



EARLY COURTS OF PENNSYLVANIA. 15 

cussion. It is sufficient to note that New York, in 
passing from the status of a proprietary to that of a 
royal province, came more directly under home influ- 
ences and, as in the case of Virginia, the more radical 
and experimental features of the early laws disappeared 
in the face of the constantly increasing influence of the 
common law, or what the colonial administrator under- 
stood as common law. 

As to remedial law it was, in the first place, provided 
that all actions of debt or trespass under the value of 
five pounds between neighbors should be put to the 
arbitration of two indifferent persons of the neighbor- 
hood to be nominated by the constable, or if either of 
the parties refused their arbitration, the justices of the 
peace should choose three other persons who were to 
meet at the cost of him who dissented from the first 
method, and their award should be conclusive. ^ The prac- 
tice of referring complicated cases to arbitration prevailed 
in the New Netherlands and this provision has been 
regarded as a survival of the Dutch custom.^ Volun- 
tary submissions were well known at the common law, 
but the principle of compulsory reference was then 
and still is to a certain extent, looked upon askance as 
an attempt to take away the palladium of liberty — the 
right to a jury trial. ^ Arbitration, as we shall see, 
occupied a prominent place in Penn's system of justice, 
was by far the most popular method of determining 
minor civil cases during the early period in Pennsyl- 



1 Charter and Laws of Pennsylvania, 3; see also page 5L 

2 Records of Court of New Amsterdam, Vol. I, 226, 230, 237, 
268, 299. 

2 Steven's Essay on Arbitration, 105. The principle of com- 
pulsory arbitration in partnership disputes was recognized in 
France by an edict of Francis II (1560) and an ordinance of 
Louis XIV (1673), incorporated in the Code Napoleon, L. 1, tit. 
3, 2. 



16 EARLY COURTS OF PENNSYLVANIA. 

vania, and, though less used now, is still a part of the 
law. In 1677, the court at New Castle referred a dis- 
pute concerning the estate of a decedent to two arbi- 
trators who were to examine the accounts and if possible 
decide the difference, otherwise to choose an umpire 
and report at the next court day.^ In 1678 Hendrick 
Vanden Burgh petitioned the court complaining that 
he had bought a house and lot from one Vidette who 
had purchased from William Tom, deceased; that the 
lot was six feet less in breadth than the deed called for 
and praying that this be added from Tom's adjoining 
lot which was about to be sold: — 

"The court answer that whereas this business in the Lyfetyme 
of Jan Vidette & M^ Tom was in question, and then decyded 
by Mr Moll, Mr Hans Blocq & Capt" Cregier as umpier and the 
Peticonr now haueing in possession soe mutch ground as then 
the arbitrators allowed, must therefore Rest himself Contented 
wth ye same."^ 

The courts were organized on a basis not dissimilar 
from that which already prevailed under the Dutch 
rule, with modifications suggested by the practice in the 
older English colonies. The principal court was the 
general court of assizes, held once a year in the autumn, 
presided over by the governor, and attended by the 
council, the mayor and aldermen of New York, and the 
justices of the various courts of sessions.^ No express 
provision for its creation is to be found in the laws 
although it is there incidentally mentioned, and, while 
the subject is obscure, the court was in fact the successor 
of that held by the director and council of the New 



^ Records of the Court of New Castle, 94. 

2 Records of the Court of New Castle, 292. 

3 Charter and Laws of Pennsylvania, 11. The Court of 
Assizes was aboHshed in 1684 by Act of Assembly. Scott's 
History of Courts of New York, 104. 



EARLY COURTS OF PENNSYLVANIA. 17 

Netherlands. The limits of its jurisdiction were unde- 
fined, and it seems to have combined both legislative 
and judicial functions ; indeed it was the closest approxi- 
mation to a legislature that New York was destined to 
enjoy for some time. The court heard appeals from the 
sessions and complaints against local officials, tried the 
more important civil cases and all capital cases, except 
where a special commission of oyer and terminer was 
issued to the justices of a distant community in order 
to obtain a more speedy trial. 

The procedure on appeal was taken almost literally 
from the laws of Massachusetts relating to appeals to 
the court of assistants.^ The appellant was required 
to give security for prosecuting an appeal and payment 
of damages. The grounds and reasons for appeal were 
to be filed with the clerk of the court. No justice that 
had sat or voted in the inferior court was permitted to 
vote in the court appealed to. Where the law and facts 
were found to agree with the former judgment it was 
not to be revoked, but the damages could be abated or 
increased as should be judged right. 

Courts of sessions were established in districts roughly 
corresponding to counties (in the neighborhood of New 
York called Ridings in imitation of the division of the 
English County of Yorkshire). These courts were held 
three times in the year, and were attended by the jus- 
tices of the peace. The governor, if present, presided, 
or in his absence a member of the council or the senior 
justice. All actions involving from five to twenty 
pounds were triable at this court, from which there 
was no appeal "unless the debt appear to be above that 
summe of twenty pounds or where there is a dubiousness 
in the expression of the law."^ In addition the court 



^ Laws of Massachusetts Colony (1672), 3; compare Charter 
and Laws of Pennsylvania, 7. 

2 Charter and Laws of Pennsylvania, 4. 



18 EARLY COURTS OF PENNSYLVANIA. 

was charged with the granting of letters of adminis- 
tration, the preservation of the peace, the trial of petty 
offenders, and the usual duties associated with the 
quarter sessions including the granting of liquor licenses, 
a duty still imposed on our quarter sessions to the dis- 
comfort of the judges. In this connection the law 
provided : — 

"Every person Licenced to keep an Ordinary shall always be 
provided of strong and wholesome Beer, of four bushels of malt, 
at the least to a Hoggshead which he shall not Sell at above 
two pence the quart under the penalty of twenty shilHngs, for 
the first Offence, forty shillings for the Second, and loss of his 
Licence. It is permitted to any to sell Beer out of the Doores at 
a peny the Ale quart or under. 

"No Licenced Person shall suffer any to Drink excessively or 
at unseasonable hours after Nine of the Clock at night in or 
about any their houses upon penalty of two shillings six pence 
for every Offence if Complaint and proofe be made thereof. 

"No Licenced Person shall unreasonably exact upon his Guest 
for any sort of entertainment, and no man shall be compelled 
to pay above eight pence a Meale, with small beer only, unless 
the Guest shall make other agreement with the person so 
lycenced. 

"No Licence shall be granted by any two Justices in Sessions 
for above the terme of one year, but every person so Licenced 
before the expiration of the said Terme shall and are hereby 
enjoyned to repair to the Sessions of that Jurisdiction for renew- 
ing their several Licences for which they shall pay to the Clark 
of the Sessions two Shillings Six pence, or else they shall forfeit 
five pounds as unlicenced persons."^ 

Pure food agitation and rate regulation are thus fore- 
shadowed, but not prohibition. 

In all actions the plaintiff was required to file his 
declaration eight days before hearing.^ The defendant 

^ The law was soon amended "that Inn keepers or Ordinary 
keepers shall not bee obliged to put any perticuler quantity 
of Mault into their Beere." Charter and Laws of Pennsylvania, 
64. For a petition for a license to keep an ordinary see Records 
of Court of New Castle, 312. 

2 Charter and Laws of Pennsylvania, 4. 



EARLY COURTS OF PENNSYLVANIA. 19 

was permitted to take a copy thereof and file an answer. 
If judgment was entered for plaintiff it was endorsed 
on the declaration, if for the defendant on the answer. 
As in Massachusetts, no proceedings are to be reversed 
because of errors or mistakes "if the person and cause 
be rightly understood and intended by the court."* 
Imprisonment in civil cases was restricted. No man 
was to be kept in prison for a debt or fine longer than 
the second day of the sessions after the arrest unless it 
was made to appear that he had some estate which he 
would not produce; if the debtor had no estate he could 
be required to satisfy the debt by service. 

In deference to the wishes of the New Englanders 
settled on Long Island provision was made for a town 
court consisting of the constable and overseers. The 
number of the latter was first fixed at eight but was 
subsequently reduced to four.^ Their duties were chiefly 
administrative, but, in cases where the parties refused 
arbitration, the town court was to decide the case if 
less than five pounds was involved.^ The town system, 
however, was not destined to thrive in the middle 
colonies, and penetrated to the Delaware only in an 
attenuated form. 

Last in the official scale was the constable, then, as 
now, the local peace officer. His badge of office was a 
staff six feet long with the king's arms thereon, which 
was to be provided at the cost of the town,* but on the 
Delaware came out of the slender purse of the local 
Dogberry.^ Among his other onerous duties he was 
required to whip or punish any one so ordered by author- 
ity, "unless they can get another person to do it." 



^ Charter and Laws of Pennsylvania, IL 

2 Charter and Laws of Pennsylvania, 44, 69. 

3 Charter and Laws of Pennsylvania, 60. 
* Charter and Laws of Pennsylvania, 22. 

® "The wch they will bee at ye charge of themselves." VII 
Pennsylvania Archives (2d Series), 737. 



20 EARLY COURTS OF PENNSYLVANIA. 

A singular feature of the code was the section relating 
to jurors. It was provided that — 

"No jury shall exceed the number of seaven nor be under 
six unless in Special Causes upon Life and Death, the Justices 
shall thinke fitt to Appoint twelve." 

"A verdict shall be so esteemed, when the major part of the 
Jury is agreed, and the Minor shall be concluded by the Major 
without -allowance of any protest by any of them to the Contrary; 
Except in case of Life and Death where the whole Jury is to be 
unanimos in their Virdict."^ 

The source of this enactment, although not disclosed, 
will probably be found in a modified form in the Con- 
necticut code of 1650^ which left it to the magistrates — 

"To impannell a jury of sixe or twelve, as they shall judge 
the nature of the case shall require — and if foure of sixe, or 
eight of twelve agree, the verdict shall be deemed to all intents 
and purposes, sufficient and full." 

In confirmation of this view the similar provision of 
1GG5 in regard to the town courts may be recalled, 
where — 

"The constable and overseers are to give their judgment 
by the Major vote, where six with the constable, or seaven in 
his absence, are competent and equivolent to a jury, and the 
constable upon equall Division, is to have a casting voyce."^ 

In 1666, it was directed that in jury trials at the 
court of assizes the number of jurors should be twelve, 
but that at the courts of sessions the number set forth 
in the law should be sufficient.* 

This remarkable deviation from the English jury 
system was not destined to survive. In the records of 

^ Charter and Laws of Pennsylvania, 33. 

2 The Connecticut Laws of 1650 (Hartford, 1833), 60. 

^ Charter and Laws of Pennsylvania, 60. 

* Charter and Laws of Pennsylvania, 69. 



EARLY COURTS OF PENNSYLVANIA. 21 

the court at Upland, to which reference will be made 
hereafter, there is a case concerning title to real estate 
which was tried in 1681 before a jury of seven, ^ but in 
other cases in the same court juries of twelve were 
drawn, as w^as the practice also of the court at New 
Castle. 2 

Penn in his laws agreed upon in England provided 
that all trials should be by twelve men, and this was 
made a fundamental law of the province.^ At the first 
court held at Lewes for the county of Sussex by com- 
mission of William Penn the legality of a prior verdict 
by a jury of seven was questioned. The suit was by 
Hermanns Wiltbank against Cornelius Johnson and is 
stated to be "by way of scarifacous"* to show cause 
why the defendant should not give the plaintiff posses- 
sion of certain land. 

"According to An order of Court & verdict of a jurey of 
Seaven men obtaind in this Court the 8th day of the 1 Mo. 
1681. The said Cornells Johnson showeth cause by his plea 
dehvered into the Court in writing that he had obtained in this 
court a verdict of a Jurey of twelve men for the said Land and 
premisses According to the Laws of England; and that the 
verdict of seaven men was and is Contrary to the knownen 
Laws of England."^ 

It was further alleged that Wiltbank had appealed 
from the former verdict against him and had failed to 
prosecute his appeal. The court with the consent of 
both parties referred the matter to the proprietor. At 
a subsequent court the plaintiff again brought up the 

^ Records of the Court at Upland, 190; see pages 107 and 181. 

2 Records of the Court of New Castle, 12, 49, 53, 81, 133, 168, 
174, 212, 217, 358, 436, 455. 

^ Charter and Laws of Pennsylvania, 100, 117, 154. 

* Elsewhere in the record "searifacous" (scire facias, mistaken 
for habere facias possessionem) . 

^ Sussex Records (Turner), 86, 91. 



22 EARLY COURTS OF PENNSYLVANIA. 

matter, stating that the governor had confirmed his 
right to the land but had recommended that it should 
be left to the peacemakers to determine whether any- 
thing was due the defendant for his improvements. 
Failing to prove his declaration he was nonsuited but 
afterwards on the advice of the court the whole dispute 
was referred to arbitration.^ 

The Duke of York's Laws were not put into execution 
in the territories on the Delaware immediately upon their 
adoption. As already stated, the Dutch and Swedish 
magistrates were retained in office, but it was wisely 
resolved to carry the necessary changes into effect grad- 
ually. In 1668 Governor Lovelace issued directions to 
Deputy Governor John Carre to associate the schout 
and certain magistrates with himself as a council, and 
that — 

"The Lawes of the Governmt Establisht by his Royall Highness 
be shewed & frequently Communicated to the said Councellors & 
all oth^s. To the end that being therwth acquainted the practice 
of them may also in convenient tyme be established wch con- 
duceth to the Public Welfare & Common Justice. "^ 

Under this plan the government was steadily brought 
into harmony with English ideas, the temporary check 
received in 1673, when the Dutch for a few brief months 
repossessed themselves of the New Netherlands, scarcely 
interrupting this process. At a council held at New 
York, May 17, 1672, it was ordered: — 

"That for ye better Governmt of ye Towne of New Castle 
for the future, the said Towne shall be erected into a Corpora con 
by the name of a Balywick, That is to say, it shall be Governed 
by a Bailey & six Assistants, to bee at first nominated by the 
Governor and at ye expiracon of a yeare foure of the six to go 

1 Sussex Records (Turner) 102. In the earlier records there 
are cases tried before juries of both seven and twelve men. 

2 VII Pennsylvania Archives (2d Series), 722. 



EARLY COURTS OF PENNSYLVANIA. 23 

out & foure others to be chosen in their places, the Bailey to 
continue for a yeare, & then two to be named to succeed, out 
of whom ye Governor will elect one; Hee is to preside in all 
ye co'^ts of the Towne & have a double vote. A constable is 
likewise annually to be chosen by ye Bench. 

"The Towne Court shall have power to try all causes of debt 
or damage to the value of ten pounds without appeal. 

"That ye English Lawes according to the desire of the in- 
habitants, bee establish t both in ye Towne & all plantations upon 
Delaware River. 

"That the ofhce of Schout be converted into a Sheriffalty & 
ye High Sheriffs power extend both in the corporacon & river & 
that he be annually chosen by two being presented to the 
Govern^, of whom he will nominate & confirm one."^ 

Finally, on September 26, 1676, an ordinance was 
passed by Governor Andros and the council formally 
:ntroducing the Duke of York's Laws and establishing 
courts on the Delaware, the material portion of which 
is as follows: — 

"Whereas upon a peticon of the Magistrates and officers of 
New Castle and Delaware River, Goveno^ Lovelace did resolve & 
in part settle the Establish Lawes of this Government and appoint 
some magistrates under an English Denominacon accordingly, 
In the which their having been an obstruction for reason of the 
late warres & Change of Government; And findeing now an 
absolute necessity for ye well being of the Inhabitants, to make 
a speedy settlement, to be a generall knowne rule unto them 
for the future, Vpon mature deliberation and advise of my 
Councell, I have resolved, and by vertue of the Authority 
derived unto mee, doe hereby in his Mamies Name Order as 
followeth. 

"L That the booke of Lawes Establisht by his Royal High- 
nesse & practiced in New Yorke, Long Island, and Dependencies 
bee likewise in force, and practiced in this River and Precincts, 
Except the Constables Courts, Country Rates & some-other 

^ VII Pennsylvania Archives (2d Series) 748. The commis- 
sion of Peter Alricks as "Bayliff" of the corporation of New 
Castle dated August 24, 1672, will be found in V Pennsylvania 
Archives (2d Series), 619. 



24 EARLY COURTS OF PENNSYLVANIA. 

things peculiar to Long Island, and the Militia as now ordered 
to remaine in ye King, but that a constable in each place bee 
yearely chosen for the Preservacon of his Mamies Peace with 
all other Power as directed by ye law. 

"2. That there bee three Courts held in ye several (parts of 
the river) & bay as formerly. To witt one in the Townes (New 
Castle one above at) Uplands another below at the Whorekil. 

"3. That the said Courts consist of Justices of the Peace 
whereof three to make a Coram, & to have the Power of a Court 
of Sessions & decide all matters under twenty pounds without 
Appeale, in which Court the oldest Justice to preside, unless 
otherwise agreed amongst themselves above twenty pounds & 
for crime Extending to life Limbo or Banishment, to admit 
appeal to the Court of Assizes. 

"4. That all small matters under the value of five pounds may 
be determined by the Court without a jury unless desired by the 
Partyes as also matters of Equity. 

"5. That the Court for New Castle bee held once a month, to 
begin the first Tuesday in each Month And the Couit for Uplands 
& the Whorekill, Quarterly & to begin the Second Tuesday of 
the Month. 

"6. That all necessary By lawes or orders (not repugnant 
to the Lawes of the Government) made by the said Courts, 
bee of force & binding, for the space of one whole yeare, in the 
severall places where made They giveing an Account thereof 
to the Governor by the first Convenience, And that noe fines 
be made or imposed but by order of Court. 

"7. That the severall Courts have power to regulate the Court 
and Offic'"^ Fees, not to exceed the Rates in the book of Lawes, 
nor to bee under halfe the Value therein exprest. 

"8. That there bee a high Sheriff e for the Towne of New 
Castle, the River and Bay: And that the said high Sheriffe 
have power to make an Under Sheriffe or Marshall being a fitt 
person, and for whom hee will bee responsable, to be approved 
by the Court, But the Sheriffe, to act as in England & according 
to the now practice on Long Island, to act as a principall officer 
in the Execution of the Lawe, but not as a Justice of the Peace 
or Magistrate. 

"9. That there bee fitting books provided for the Records 
in which all Judiciall Proceedings to be duely and fairely Entered, 
as also all Publick Orders from the Governor And the names 
of the Magistrates & Officers Authorized, with the time of their 
Admission: the said Records to bee kept in Enghsh, To which 



EARLY COURTS OF PENNSYLVANIA. 25 

all persons concerned may have free Recourse at due orseasonable 
times. 

"10. That a fitt person for Clarke when Vacant, be recom- 
mended by each Court to the Governor for his Approbacon in 
whose hands the said Reccords to be kept. 

"11. That all writts, Warrants & Proceedings at Law shall 
be in his Mattes Name. It having been practiced in ye 
Government ever since the first writing of the Law booke, And 
being his Royall Highness Speciall pleasure & Order. "^ 

The promulgation of the laws and. the more definite 
instructions for the administration of justice must have 
given general satisfaction, for in their communications 
with the governor the justices seem to have been in 
doubt on many points, and a delay in forwarding copies 
of the laws seems to have given them considerable anxiety. 
In a letter of June 8, 1677, the magistrates of New 
Castle write: "We likewise humbly desier that the 
sending of the Law booke may not be forgot, there being 
great occasions for the same."^ 

It may be interesting at this point to give a brief 
account of the most important civil suit fought out in 
the territory on the Delaware at this early date, involv- 
ing the title to Tinicum Island. It was here, as we 
have seen, that the Swedish governor, John Print z, 
established the seat of government, building a block- 
house, church and private residence called Printzhof, 
the island having been granted to him in 1643 by Queen 
Christina "for a bouwery" as a reward for his services.^ 
After the Dutch conquest his daughter, Jeuffro Arm- 
gart, wife of John Pappegoya, the successor of Print z 
as governor, was on her petition, permitted in 1656 "to 
take possession and cultivate the lands of her lord and 



1 VII Pennsylvania Archives (2d Series), 783. 

2 VII Pennsylvania Archives (2d Series), 787, also 777, 794, 797. 
^ VII Pennsylvania Archives (2d Series), 494; Hazard's 

Annals of Pennsylvania, 70. 



26 EARLY COURTS OF PENNSYLVANIA. 

father."^ Jeuffro Armgart as agent for her father sold 
the property on May 29, 1662, to Joost De LaGrange who 
paid one half of the purchase money and entered into 
possession. Trouble occurred at once over payment 
of the balance. In the latter part of 1662 a bill of 
exchange given by LaGrange was protested, Jeuffro 
Armgart recovered judgment and an appeal was taken. 
Printz died in 1663 and Jeuffro 's power to act for her 
sisters was disputed. In the meantime the English 
conquered the New Netherlands, LaGrange died and his 
widow married Andrew Carr who obtained a patent for 
the island from Governor Lovelace in 1669. While the 
Carrs were abroad, looking after an estate they had 
inherited, Jeuffro Armgart returned with powers of 
attorney from her sisters and brought suit for the balance 
of the purchase money at the court of New Castle. The 
case was adjourned or appealed to the court of assizes 
at New York, where it was tried on October twelfth, 
1672.^ Some of the papers were in "high" and some 
in "low" Dutch and the services of an interpreter were 
required. The defendants' attorney, Mr. Ryder, pro- 
tested that Captain John Carr's letter of attorney from 
Andrew Carr was not sufficient to authorize him to 
defend the suit and moved for a continuance, which was 
refused. The case was sent to the jury, who brought in 
a verdict for the plaintiff for the full amount of her 
claim upon which judgment was entered. In the month 
of January following the governor and council issued 
an execution directed to Captain Edmund Cantwell, 
high sheriff at New Castle, who was directed to seize 



^ Hazard's Annals of Pennsylvania, 219, quoting Albany 
Records, Vol. XVII. 

2 Hazard's Annals of Pennsylvania, 400, quoting Albany 
Records, Court of Assizes, Vol. II, 293-300. 



EARLY COURTS OF PENNSYLVANIA. 27 

the land and goods of the Carrs, particularly Tinicum.^ 
The latter island was to be appraised and if found of less 
value than the debt, the plaintiff was to be given pos- 
session and a further levy made on other property of the 
defendants. Jeuffro Armgart was accordingly restored 
to possession of the island which she sold to Justice 
Otto Ernest Cock. The new owner was, however, not 
to rest in quiet possession. Arnoldus De LaGrange, son 
of Joost, when of age returned to America and 
settled at New Castle where he subsequently became 
a justice of the peace. Shortly after his return he pre- 
sented to Governor Andros a petition for equitable 
relief against the judgment of the court of assizes, 
setting forth his infancy at the time of the trial and 
other defects in the proceedings.^ No answer to the 
petition is recorded but at the last session of the Upland 
court before the transfer of the territory to Penn held 
June 14, 1681, suit was brought by LaGrange against 
Cock Avhich was postponed to the next court "by reason 
that there's noe court w^'^out Justice Otto whoe is a 
party. "^ The case was finally tried at a court held at 
Chester 22, 6 mo. 1683, where LaGrange was repre- 
sented by Abraham Mann and Cock by John White as 
attorneys in the suit. The plaintiff declared as heir 
at law and the defense was that part of the purchase 
money had never been paid. The verdict of the jury 
as entered on the record is : — 

"The jury finde for ye Plaint and alsoe give him his costs 
of suite and fEorty shillings damage; the Plaint paying to ye 



1 V Pennsylvania Archives (2d Series), 627. A second execu- 
tion was issued in 1675 by Governor Andros, V Pennsylvania 
Archives (2d Series), 666. In Records of Court of New Castle, 
page 53, is a suit by the sheriff against the auctioneer for the 
amount realized at a sale under this execution. 

2 VII Pennsylvania Archives (2d Series), 799. 

3 Records of the Court at Upland, 189. 



28 EARLY COURTS OF PENNSYLVANIA. 

Deft Thirty & seaven pounds & Tenne Shillings, according to 
an agreement between ye Plaint and Deft produced & read in 
this court & alsoe delivering ye Block House & pticuters in ye 
same agreemt mentioned. Judgmt is thereupon awarded."^ 

Here we have an early, if not the first, example of a 
conditional verdict so popular afterwards in Pennsyl- 
vania when an equitable defense was raised in an action 
of ejectment. Execution issued on this judgment and 
La Grange was put in possession. Less than a year 
afterward he sold the island to Christopher Taylor, the 
first register general, one of whose descendants left a 
will that gave rise, in the nineteenth century, to litiga- 
tion as long and stubborn as that we have recounted.^ 
The Printz mansion was destroyed by fire in 1822 but 
it is said that on the site ancient bricks of a foreign 
make and pale yellow color have been found which were 
once a part of this venerable structure.^ 

It would seem from the above proceedings and from 
an order of Governor Andros of July 17, 1678,^ that lands 
were regarded as liable for debts, contrary to the com- 
mon law where the creditor's only remedy was by writ 
of elegit under which one half of the rents could be 
taken. ^ Penn's first legislation subjected lands to exe- 
cution to a limited extent, but not until 1700 was the 



^ Chester County Records quoted in Ashmead's History 
of Delaware County, 280; see, also, Memoirs Long Island His- 
torical Society, Vol. I, 189. 

2 Hart V. Hill, 1 Wharton's Reports, 124 (1835); Tinicum 
Fishing Co. v. Carter, 61 Pennsylvania Reports, 21 (1869); 
77 Pennsylvania Reports, 310 (1875); 90 Pennsylvania Repgrts, 
Sb (1879). 

^ Smith's History of Delaware County, 31. 

* VII Pennsylvania Archives (2d Series), 797. In the case of 
a decedent, Andros seems to have solved the question of title 
by directing that the purchaser should have "a new pattent 
for his title." 

^ III Blackstone's Commentaries, 419. 



EARLY COURTS OF PENNSYLVANIA. 29 

whole land made liable where no personal property 
could be found. ^ 

That land was subject to seizure for debts under the 
Dutch rule is indicated by the following extract from 
the minutes of Jacquet's court, February 14, 1657: — 

"Isack Allerton has had seized by the Court Messenger subject 
to the decision of the Hon^^® Council, the immovable property 
belonging to Peter Hermausen here on the river. "^ 

From such records as have escaped destruction we are 
enabled to present a fair outline of the actual practice 
in these primitive tribunals, presided over by laymen 
and unembarrassed by the conflicting arguments of pro- 
fessional lawyers. An adequate notion of the crudity 
of the proceedings can be conveyed only by examples 
from the records which were kept in the most informal 
fashion. Sometimes the entries are limited to the names 
of the parties and the judgment, while in other instances 
there is a summary of pleadings and evidence. While 
the names of common law actions, such as debt, case 
and replevin, are used there is little to indicate that 
judges or parties had more than a very vague concep- 
tion of their scope and distinctions. Thus, there is an 
entry of "an action of the Case for twoo peeces of 
marrish & y^ hay thereon mowed. "^ Appeals to New 
York were frequent and were sometimes specially allowed 
by the governor, as would appear from the following 
example : — 

"By the Governor 

"Upon the request of Hans Pieterson, concerning several 
Judgm'^s Qf i]^Q Courts of New Castle & Upland in Delaware 
in a case between the sd Pieterson & Do Lawrentius Carolus, 

1 Presbyterian Corporation v. Wallace, 3 Rawle's Reports, 
108 (1831) at page 141. 

2 New York Colonial Documents, Vol. XII, 160. 

3 Records of the Court of New Castle, 355; see, also, Jegou v. 
Wright, Upland Records, 140. 



30 EARLY COURTS OF PENNSYLVANIA. 

concerning a certain Mare, The Jureys tho' composed in part of 
the same Persons, yet brought in several Verdicts, the Courts 
having given different Judgm^^ accordingly, & it not appearing 
by any Testimonies what Mare was in Difference ; I do therefore 
hereby Order, that the Execucons in s^ Matter be Suspended, & 
a full Acco* of all s^ Proceeding in both Co*^ be forthwith sent me. 
"Actum in New York this 28th day of July, 1677. 

"E. ANDROS. 

"To the Courts of New Castle and Upland & all Officers in 
Delaware whom it may concern."^ 

Such appeals were heard at the general court of 
assizes in the city of New York, the minutes of which 
present a spirited picture of assembled worthies. One 
appeal from a judgment of the court at the Whorekill 
concerning the title to a tract of land was tried in 1680 
before the following distinguished company: the gov- 
ernor, Sir Edmund Andros, five members of the council, 
the mayor and five aldermen of New York, the chief 
justice of Nantucket, the two commissaries of Albany, 
three justices from New Jersey, two from "Peniquid 
and parts eastward," and a dozen more from Long Island 
and New York. The judgment of the lower court was 
affirmed at the cost of the appellant.^ On another occa- 
sion (in 1681) a case was tried in which the defendant, 
one of the justices of the court at New Castle, was 
accused of misconduct in his office. 

"M^ John Moll Justice of the Peace and President of the Court 
at Newcastle being called to Answer to an Indictment Exhibitted 
against him by one Abram Mann for severall Words and Ex- 
pressions by him said to be uttered and spoken in Court and at 
other Times, To which the said John Moll pleaded not Guilty, 
and a jury being Impanelled and Sworne with several Evidences 
they brought in their Verdict and found him guilty of Speaking 
the Words mentioned in the first and second Articles and of 



^ V Pennsylvania Archives (2d Series), 692; see in the court 
below New Castle Records, 88; Upland Records, 74. 
2 V Pennsylvania Archives (2d Series), 721. 



EARLY COURTS OF PENNSYLVANIA. 31 

Denying Execution when demanded, menconed in the fourth 
Article, and for the rest not Guilty, the which the Court taking 
into Consideration Do adjudge the said Indictment to be illegal 
and vexatious and that the said John Moll by what found against 
him is not Guilty of any Crime or Breach of any known Law 
Therefore do Acquitt the said John Moll from the same and 
Order the said Abram Mann to Pay the Costs of Court. The 
said Mann moved for an Appeale for England which is granted 
he giving sufficient Security to the value of One Thousand 
Pounds to Prosecute the same and pay damage to the Party 
if lost."i 

It is interesting to note that the parties to this suit 
were afterwards prominent in Penn's government. Jus- 
tice Moll became a member of the first provincial council 
and was one of the committee that drew up the amended 
frame of government, or charter of 1683, while Abram 
Mann was a member of the assembly from New Castle 
in the sessions of 1684-5. 

It would not do to omit mention of the first state 
trial, if it may be so called, that was held on the Dela- 
ware. Near the close of 1669 a disturbance was created 
by one Marcus Jacobson, alias John Binckson, but better 
known as "Long Finne," who pretended to be a son of 
Conningsmark, a Swedish general. Whether this so- 
called insurrection was a serious attempt to overthrow 
the government, or a mere riotous or seditious disturb- 
ance, it was treated with the utmost seriousness by 
Deputy Governor Carr as well as Governor Lovelace. 
An order for the Finne's arrest was issued, and he was 
put in irons, while the other persons implicated were 
bound over for court. At a meeting of the council in 
New York on October 18, 1669, it was resolved: — 



^ V Pennsylvania Archives (2d Series), 722. Abraham Mann 
not satisfied with the judgment of the Court of Assizes attempted 
to post on the door of the court at New Castle a paper con- 
taining his version of the proceedings, in which the court was 
charged with partiality. A warrant was issued for his arrest 
but he fled up the river. New Castle Records, 497, 514. 



32 EARLY COURTS OF PENNSYLVANIA. 

"Vpon serious & due Consideracon had of the Insurrection 
begann by ye Long Finne at Delaware, who gave himself out 
to bee son of Coningsmarke a Swedish Generall & ye dangerous 
consequences thereof, It is adjudged that ye said Long Finne 
deserves to dye for the same. Yet in regard that many others 
being concerned wth him in that Insurrection might be involved 
in the Premunire if the rigour of the Law should be ex- 
tended & amongst them divers simple and ignorant People: 
It is thought fitt and Ordered, that the said Long Finne shall 
be publickly & severely whipt & stigmatiz'd or branded in the 
flace with the Letter (R) with an Inscription written in great 
Letters & putt upon his Breast, That he received that Punish- 
ment for Attempting Rebellion, after wh^h that hee bee secured 
untill hee can bee sent & sold to the Barbadoes or some other 
of those remote Plantations."^ 

But after deciding upon his fate, it was determined 
to try him according to the forms of law and a special 
commission was issued to Mathias Nicolls and others 
to try him, whose instructions were to hold the court 
according to a prescribed form, which presents an excel- 
lent picture of the practice then followed in a criminal 
trial. 

"The forme of holding the Co^t at the Fort in Newcastle upon 
Delaware River for the Tryall of the Long Finne &c. about the 
late Insurrection, Decem. y^ 6th 1669. 

"Vpon the meeting of the Court let a proclamation bee made by 
saying, O yes, O yes, O yes. Silence is commanded in the Co^^ 
whilst his Mamies Commissioners are sitting Vpon paine of im- 
prisonment. 

"Lett the Commission be read & the Commission's called vpon 
afterwards, if any shall bee absent Let their names bee recorded. 

"Then let the proclamacon bee made again by O yes, as before, 
after which say: All manner of persons that have anything to doe 
at this speciall Co^^^ held by Commission from the Right Hot>le 
Francis Lovelace Esq. Governor Genrl vnder his Royal High- 
ness the Duke of York of all his Territories in America draw 
neare to give yo' attendance, and if any one have any plaint to 

^V Pennsylvania Archives (2d Series), 579, 582, 584; VII 
Pennsylvania Archives (2d Series), 723, 725. 



EARLY COURTS OF PENNSYLVANIA. 33 

enter or suite to prosecute let them come forth & they 
shall bee heard. 

"After this let a jury of twelve good men bee empannelled. 

"Then let the Long Finne prisoner in the Fort bee called for & 
brought to the Barr. 

"Vpon which the jury is to be called over & numbered one, 
two &c. & if the prisoner have no exception against either of 
them let them bee sworne as directed in the Booke of Laws 
for Tryall of Criminals, and bid to look vpon the prisoner at the 
Barre. 

"The forme of the oath is as folio weth: You do swear by the 
Everliving God that you will conscientiously try and deliver 
your verdict between o^ Sovaraigne Lord the King, & the prisoner 
at the Barre according to evidence & the lawes of the Country, 
so helpe you God & the contents of this booke. 

"Then let the prisoner bee again called vpon and bid to hold 
up his right hand: 

"Viz. John Binckson alias Marcus Coningsmark alias Conings- 
marcus alias Mathew Hincks. . . . 

"Then proceed with the indictment as follows: 

"John Binckson, Thou standest here indicted by the name 
of John Binckson alias Coningsmark alias Coningsmarcus ahas 
Mathews Hinks, alias, etc. for that having not the feare of God 
before thine eyes but being instigated by the devill vpon or 
about the 28th day of August in ye 21st year of the Raigne of 
o^ Soveraigne Lord Charles the 2d by the Grace of God of England 
Scotland, France and Ireland, King, Defender of the Faith &c. 
Annoque Domini 1669, at Christina & at severall other times & 
places before, thou didst most wickedly, traitorously, feloniously 
& maliciously conspire and attempt to invade by force of armes 
this Government setled vnder the allegiance and protection 
of his Mamies & also didst most traitorously solicit & entice 
divers & threaten others of his Mamies good subjects to betray 
their allegiance to his Ma^es the King of England persuading 
them to revolt & adhere to a forraign prince, that is to say, 
to the King of Sweden In prosecution whereof thou didst appoint 
and cause to bee held Riotous, Routous & Vnlawfull Assemblyes, 
breaking the Peace of o^ Sovereign Lord the King and the laws 
of this Government in such cases provided John Binckson &c 
what hast thou to say for thyself. Art thou guilty of the felony & 
treason layd to thy charge or not guilty. If hee says not guilty, 
then ask him By whom wilt thou be tryed. If hee say be God & 
his countrey, say, God send the a good deliverance. 



34 EARLY COURTS OF PENNSYLVANIA. 

"Then call the witnesses and let them bee sworne either to 
their testimony already given, in or to what they will then declare 
upon their oaths. 

"Vpon which the jury is to have their charge giving them 
directing them to find the matter of Fact according to the 
Evidence and then let them bee called over as they go out to 
consult upon their verdict in which they must all agree. 

"When the jury returns to deliver in their verdict to the Co ^t 
let them bee called over againe & then ask^: Gents, are you 
agreed upon your verdict in this case in difference between o^ 
soveraign Lord the King & the prisoner at the Barr. Upon 
their saying yes, aske who shall speak for you. Then the ........ 

bring in their verdict & the .... then read the verdict and say : 

Gentlemen, this is y^ verdict upon which you are all agreed; 
upon their saying yes, call that the prisoner bee taken from 
the barre & secured."^ 

As a matter of course the Finn was convicted and 
sentenced. The last we hear of him is in this minute 
of the council, January 25, 1669-70: — * 

"This day ye Long ffinne called Marcus Jacobsen was by 
warrt put on board Mr. Cosseans Ship called y^ Fort Albany 
to be Transported & sould at ye Barbadoes according to ye 
sentence of Court at Delaware for his attempting rebellion. He 
had beene a prisoner in ye State house ever since ye 20th day of 
Decemb^^ last."^ 

We are fortunate in possessing portions of the records 
of the county courts during this period. That of Upland 
is particularly interesting as presenting a complete 
record of the first county court on Pennsylvania soil 
from the year 1676 to the announcement, in June, 1681, 
of the transfer of the government to William Penn, In 
the commissions issued by the governor six justices of the 
peace are named, any three or more of whom may hold 
court, the commissions to be in force for one year or 
until further order. It would be tedious to recite the 



1 VII Pennsylvania Archives (2d Series), 728o 

2 VII Pennsylvania Archives (2d Series), 731. 



EARLY COURTS OF PENNSYLVANIA. 35 

manifold duties performed by the justices, whose func- 
tions included those now delegated to the county com- 
missioners, directors of the poor and auditors as well as 
those pertaining strictly to their judicial office. They 
granted applications for taking up land, took acknowl- 
edgments of deeds, and exercised a general supervision 
over the churches, the repair of the highways, the 
maintenance of fences, the sale of the time of bound 
servants, and even recorded the earmarks of cattle. 

The expenses connected with the sittings of the courts 
were supposed to be met by the fees and fines imposed, 
but these were not always easily collected and the 
Upland justices record in one place that they are "in 
great want of some meanes to pay and defray their 
necessary charges of meat and drinke."^ The court at 
the Whore kill, the name of which had been changed to 
Deal, made this clever bargain : — 

"It is agreed and Concluded upon by the Court and Alexander 
Moulston as folio weth; that from the first day of this moneth 
the said Alexander Moulston shall have to his owne proper use 
all the Ama cements that doe from that day becom due to the 
court for one whole yeare; and that the said Alix Moulston doe 
Ingage to find and allow the Justices of this Court for the time 
being and there friends and strangers with house roome and 
diett And one gallon of Rum and wine for every Court during 
the said year."^ 

Actions for the recovery of debts, for assault and 
battery and slander predominate. It would seem that 
the judges sometimes found it necessary to appeal to 
their own tribunal, as the following case shows: — 

"Justice Otto Ernest Coch Pit. ( In an action of sla under 

"Moens Petersen Staecket Deft. ( & defamat. 

"The pit Complaines that this deft, maliciously has defamed 
and most highly slaundered him in his Honor & reputation 



^ Records of the Court at Upland, 160. 
2 Sussex Records (Turner), 69. 



36 EARLY COURTS OF PENNSYLVANIA. 

by terming him a hogh theef, desires that this deft (if hee or 
any others can) will prove ye same, or otherwayes that hee 
may bee punisht according to Lawe. 

"The deft sayes and protests, that hee never Knew heard or 
sawe, that this Pit was guilty of any such fact, and that hee 
to his knowledge never sayed any such thing, but if that he 
hath sayed itt (as the witness doe afirme:) that itt must haue 
been in his drink, hee humbly desires forgivenesse, sence hee 
finds him^elfe in a great fault; 

"Hans Jurian, william orian & andries homman sworne in Co^t 
declare that they haue heard moens Peterss Staecket say in full 
tearmes & substance, Mr. Otto is a hogh theef of ye one & andries 
Boen of ye other syde & further say nott; 

"The Court haueing heard ye Case doe order that ye deft: shall 
publicqly in open Court declare that hee has wrongfully falsly & 
malisiously slaundered & blamed this pit and doe further fyne 
him for an Example to others to pay the sume of one thousand 
gilders w^h the Costs; 

"The deft, did willingly in open Court, declare as above & 
humbly desires forgivenesse & prayes that ye fyne may bee 
remitted. Upon ye Intercession of Justice Otto Ernest, the Co^t 
did remit ye fyne aboved." ^ 

Judgments are entered sometimes in guilders and 
stivers and '^metimes' ih pounds of tobacco, wheat or 
other products. In one case at Upland the court 
ordered the defendant to pay the plaintiff "twenty gilders 
in wheat and twenty six in pompkiens."^ 

A case, showing the primitive practice, from the 
commencement to the termination of a suit, is that of — 



^ Upland Court Records, 180. In another case of slander the 
court fined the defendant and ordered "that ye defendant openly 
shall declare him selfe a Lyar," page 176. "In the Norman 
Custumal it is written that the man who has falsely called 
another 'thief or 'manslayer' must pay damages, and, holding 
his nose with his fingers, must publicly confess himself a liar." 
Pollock and Maitland History English Law, II, 537. 

2 Records of the Court at Upland, 156. 



EARLY COURTS OF PENNSYLVANIA. 37 

'James Sanderlins pit 



agst 

"John Edmunds of 

maryland Deft 

"The pit demands by bill from this deft, ye sume of 12001b 
of good & merchandable Tobbacco & Caske to bee paid in Great 
Chaptank River in maryland on all demands after ye 10th of 
October 1675; as by the said bill under ye hand and seale of the 
deft bearing date ye 9th of June 1675; & produced in Court did 
more att Large appeare, the pit further declaring & prooveing 
in Court that hee hath made severall Legall demands of the sd 
debt, and y© the same was not paid to this day, desiering that 
this Co^t would be^ pleased to grant him Judgemt agst ye de^t 
and to allow of his attachment Laid upon a certaine great 
Boate or shiallop & appurtenances now att upland — That 
the same might bee publicqly sould and the pit payed his Just 
due wth ye Costs; 

"m^ waiter wharton one of the witnesses to ye sd bill being 
sworne in Court declared that hee was p^sent and did see John 
Edmundsen signe seale and deliver, the abovesaid bill of 1200 
lb of Tobacco, to James Sanderlins; 

"The Court haueing Examined into ye businesse, and finding 
the Case to bee Just, did order that Judgment bee Entered 
against the deft: John Edmunds, for the paymt of ye sd. 1200 
lb of Tobacco, or the True vallue thereof, and alloweing of ye 
Pits attachmt doe hereby order the vendu master, to sell the 
boate & appurtenances, this Courtday to the most bidders, 
out of which hee to pay James Sanderlins his debt w^h ye Costs, 
and the overplus to bee returned to John Edmunds or his order; 

"According to the abovesd order of Co^t was this day being ye 
12th of Novembr, by publicq outcry sould unto mr John Test, as 
ye highest bidder the boate & appurtenances for ye sume of 
six hundred and twenty fyve gilders; to bee paid in New Castle 
with merchandable Tobbacco & Caske dutch wth & tarr att 8 
styvers pr lb or wth merchandable wheat at 5 gilders pr schipple 
att or before ye Laest of march next Ensuing, as by the Con- 
ditions of sale upon ye fyle att Large doth & may appeare; 

"James Sanderlins bound himselfe as security for ye true pay- 
ment of ye aboves 625 gilders according to the conditions"^ 

As these proceedings occurred all on one day, the 
parties could not complain of the delays of the law. 



^ Records of the Court at Upland, 111. 



38 EARLY COURTS OF PENNSYLVANIA. 

What would appear to be the first recorded action for 
negligence is entered as follows on the New Castle 
records : — 

"Mounes Powell pit 

"Hans Pietersen Deft 

"The pit declares that this de^t about one Jeare sence was the 
occascon that he the pit lost the use of his boddy so that he was 
& is not able to worke for his wife and family and therefore 
humbly craves that the de^t may be ordered to hire a servant 
for him until he bee restored to health: — The court having heard 
the answer of the deft and finding by the evidence swome in 
court, as also by the pl^ owne confession that itt was an accidental 
mischange, doe order that the deft shall pay the curing to the 
doctors bill this date and moreover Pay unto the p^t jn regard 
of his smart and Payne w^h the -p^^ hath suffered the sume of 
one hundred and fifty gilders and pay cost of sute."^ 

In another case in 1679 a mortgage is foreclosed: — 

"John Moll pit 

"Robberd Hutchinson Deft 

"The pit declares that one Daniel Linsy being his debtor the 
sume of 847 lb of Tobacco & Caske did on ye day of 167 ; mort- 
gage Trasport & make over unto this Plt a Certain peece of 
Land Lying in Appoquenemen Creeke, above ye old Landing 
wch sd mortgage and Transput was to bee void upon ye payment 
of ye sd 8471b of tobb att ye time in ye s^deed Exprest, as by 
the sf^- mortgage bearing date as above more att Largedid appeare 
and that this deft Robberd hutchinson, haueing sence bougt 
the sd Land from ye s^ Linsey did promise to pay ye pit his 
s^ debt wch being nott performed, The Plt is now forced to Com- 
mence his action in La we, and humbty Craues this Co^ts order 
so that hee may haue ye forfeiture and benefitt of his afores^ 
mortgage and that hee may bee put in peaceable Possession of 
the s^ Land according to s^ deed. The Co^t haueing Examined 
the premises doe Judge that according to La we and the s^ deed 
the Land aboves^ is forfeited and belonging to ye plt and therefore 
do order that the Plt bee put in Lawfull Possession thereof. "- 

^ Records of the Court of New Castle, 9. v 
2 Records of the Court of New Castle, 341. 



EARLY COURTS OF PENNSYLVANIA. 39 

A case that perplexed the justices at Deal involved a 
gambling contract. 

"Henry Bowman P^^^, James Welles and John Newall defts. 
The P^^ declare that the defts did contract & agree w^h him to 
Run A horse Race for three thousand pounds of Tobacco; and 
that he the said P^t ded wine; the deft pleaded that the Contract 
was not confirmed, the cause being debated on both sides and 
severall witnesses Examined the Cause was Referred to a Jurey; 
wch went out and brought in there verdict; that they finde for 
the pit with Cost of suit and one shill Damages; and the defts 
arest the Judgmt of the Court & craved an Appeale to have 
the Cause to be Tryd at the next Gennarall Court of Assisses 
at New York befor the Honorable Governor and Councell; 
the vallow being under twenty pounds the Court Could not 
agree weather it was appealeable or not; and soe refered the 
same untill the next Court; there being sume thing dubous 
in the Testament of the Wittnesses."^ 

A competent authority has remarked, "the whole 
method of practice was rather a dispensation of justice, 
as the idea of it existed in the heads and was tempered 
by the hearts of the judges, than the administration 
of any law written or unwritten."^ And yet when we 
remember that these men were all laymen, pioneers 
on the border of the wilderness, whose true business 
was to clear the forests and till the soil, and whose 
judicial office was a burdensome duty, performed at a 
considerable sacrifice of time and money in the interest 
of their little communities, that they were without 
books or forms and sometimes without blank books in 
which to write their records, we may wonder that they 
did so well.^ The justices of these courts as members 
of the provincial council, as assemblymen, and as judges, 
played their part in the "Holy Experiment" heralded 



^ Sussex Records (Turner), 57. 

2 Smith's History of Delaware County. 

3 VII Pennsylvania Archives (2d Series), 777. 



40 EARLY COURTS OF PENNSYLVANIA. 

in the last entry in the Upland records. This entry, 
the last official act under the Duke of York's adminis- 
trat on, is a notice to the magistrates of the cession of 
the territory to William Penn and a direction that they 
should yield due obedience to the new proprietor. Here 
then it is that the histories of the commonwealths of 
Pennsylvania and Delaware begin, if commonwealths 
may be said to have a beginning. 

On March 4, 1681, the province of Pennsylvania was 
granted by King Charles II to William Penn, son of 
Vice Admiral Penn, to whom a considerable debt was 
then owing by the Crown. ^ It would be tempting at this 
point to turn aside and discuss the character and career 
of the remarkable man who founded the commonwealth 
of Pennsylvania. Much has been written about him and 
yet it is doubtful if he has received his real due from 
history. William Penn was an idealist, perhaps in some 
respects a visionary man, and yet many of his views 
were eminently sensible and fundamentally sound. The 
leader of an exclusive religious sect, the welcome guest 
at court, the friend alike of James II, of Algernon Sydney 
and of John Locke, a man of brilliant parts and attrac- 
tive personality, yet modest, generous, tolerant and 
forgiving, the nobility of his character as revealed in his 
writings and conduct is worthy of our highest admira- 
tion, little as it was appreciated by those who, like 
Franklin, owed much of their prosperity to his "Holy 
Experiment," but could not understand his motives. 
To his enlightened benevolence and faith in mankind, 
civilized and savage, was due the early prosperity and 
progress of the commonwealth. As a German writer 
has well observed, "Of all the colonies that ever existed 
none was ever founded on so philanthropic a plan, none 
was so deeply impressed with the character of its founder, 

^ Charter arid Laws of Pennsylvania, 81. 



EARLY COURTS OF PENNSYLVANIA. 41 

none practised in a greater degree the principles of 
toleration, liberty and peace, and none rose and flour- 
ished more rapidly than Pennsylvania. She was the 
youngest of the British colonies established before the 
eighteenth century, but it was not long before she sur- 
passed most of her elder sisters in population, agricul- 
ture and general prosperity."^ 

An analysis of the charter granted to Penn belongs 
rather to constitutional history than to our subject. 
The English government was daily becoming more 
impressed with the importance of the colonies in America, 
and in consequence the document was drawn with more 
care for the royal prerogative than the earlier charters. 
One of the most important of its provisions was that 
requiring a transcript of all laws made and published in 
the province to be transmitted within five years to the 
privy council, and if within six months such laws should 
be declared inconsistent with the king's prerogative or 
sovereignty, the same should be declared void, other- 
wise to remain in full force. Penn was given full power 
to make laws, with the advice and consent of the free- 
men of the country or their deputies in assembly, to 
appoint judges, justices and other judicial officers, to 
pardon crimes, treason and willful and malicious murder 
excepted, and to "do all and every other thing and 
things which unto the complete establishment of justice, 
unto courts and tribunals, forms of judicature and 
manner of proceedings do belong," and by judges 
appointed, to award process, hold pleas and determine 
all actions, suits and causes whatsoever, as well criminal 
as civil, personal, real and mixed. By three deeds the 
Duke of York conveyed to Penn the territory covered 
by the charter and the three lower counties. 



^ Eberling's History of Pennsylvania quoted in Janney's Life 
of Penn and 1 Hazard Pa. Reg. 340. 



42 EARLY COURTS OF PENNSYLVANIA. 

On April 10, 1681, Penn commissioned his cousin, 
William Markham, to be deputy governor, who arrived 
on tJie Delaware about the first of July following. His 
first act was to call a council and on November 30th 
we find him holding court at Upland. Prior to this we 
have the first entry in the records of the Upland Court as 
part of the province of Pennsylvania.^ Nine justices 
are recorded as present. The first cases tried were two 
cross actions of assault and battery in which all parties 
were convicted and fined.- 

Before sailing for America Penn drew up his famous 
"Frame of Government," the original manuscript of 
which, with interlineations and notes in the handwriting 
of his friends, is preserved in the archives of the His- 
torical Society of Pennsylvania.^ Penn was a close 
student of political institutions and lived at a time 
when, in his own words, there was "nothing the wits of 
men are more busy and divided upon." He like many 
of his coreligionists had suffered imprisonment for con- 
science sake. The account of his. trial is a fair picture 
of the administration of justice in the principal criminal 
court of London during the Stuart period.* When we 
read those stirring pages we can understand the sus- 
picion with which the courts were regarded by the 
colonists and their exaggerated faith in trial by jury. 
Fear of judicial oppression, in fact, had a marked influ- 
ence on the development of our courts, was instrumental 
in checking the growth of chancery jurisdiction for 
several generations and was the primary cause of that 
jealousy of the judiciary which was long a feature ot 
local politics. 

^ The justices at New Castle in a letter to the deputy governor 
at New York dated November 11, 1681, refer to "Pensilvania." 
^ Hazard's Annals of Pennsylvania, 525. 
^ Pennsylvania Historical Magazine, Vol. XXX, 6. 
^ 6 Howell's State Trials, 951 (1670). 



EARLY COURTS OF PENNSYLVANIA. 43 

Penn, although he had grown up in a period of political 
unrest, was eminently practical in his ideas of govern- 
ment. He was a believer in men rather than in methods. 
In the preface to the Frame of Government he says: — 

"But lastly when all is said, there is hardly one frame of 
government in the world so ill designed by its first founders, 
that in good hands would not do well enough; and story tells 
us, the best in ill ones can do nothing that is great or good; 
witness the Jewish and Roman states. Governments, like clocks, 
go from the motion men give them, and as governments are 
made and moved by men, so by them they are ruined too. 
Wherefore governments rather depend upon men, than men 
upon governments. Let men be good, and the government can- 
not be bad; if it be ill, they will cure it. But if^en be bad, 
let the government be never so good, they will endeavor to 
warp and spoil to their turn." ^ 

Under the system of government first established by 
Penn the executive powers were vested in the governor 
and provincial council, while the legislative powers were 
vested in the governor, provincial council and general 
assembly of the representatives of the freemen of the 
province. The provincial council was an elective body 
not only associated with the governor in the ordinary 
executive duties but also charged with the preparation 
of all new laws, which after publication,^ were to be 
submitted to the general assembly for approval. Both 
council and assembly were designed on generous pro- 
portions but at the request of the colonists the mem- 
bership in both bodies was greatly reduced.^ The courts 
were to be erected by the governor and council, the 
latter body nominating a double number of candidates 

^ Charter and Laws of Pennsylvania, 92. 

2 For form of promulgation, see Minutes of Council, 2, 2 mo. 
1686, I Colonial Records, 122. 

^ The original Frame of Government as drawn up by Penn 
was amended at an assembly held at Philadelphia March 1, 
1683, Charter and Laws of Pennsylvania, 93, 123. Penn's first 
dlan contained the principle of initiative and referendum. 



44 EARLY COURTS OF PENNSYLVANIA. 

from whom the governor was to select a proper number 
for each office. This last provision did not work well 
in practice, as it was difficult to get enough men of the 
right sort to fill the commission of the peace, as the 
minutes of the council clearly show. 

It will be seen that the courts, as such, played but a 
subordinate part in the constitutional system. Indeed 
the conception of the judiciary as a coordinate branch 
of the government was as yet unrealized; balanced con- 
stitutions were the final products of the eighteenth cen- 
tury, the seventeenth was concerned with the funda- 
mental rights, liberties and privileges of the subject. 
These rights, as applied in the administratoin of justice, 
were embodied in the "Laws agreed upon in England," 
and published with the Frame of Government. It is 
therein declared — 

"That in all courts all persons of all persuasions may freely 
appear in their own way, and according to their own manner, 
and there personally plead their own cause themselves, or if 
unable, by their friends. And the first process shall be the 
exhibition of the complaint in court, fourteen days before the 
trial; and that the party complained against may be fitted 
for the same, he or she shall be summoned no less than ten days 
before, and a copy of the complaint delivered him or her, at 
his or her dwelling house. But before the complaint of any 
person be received, he shall solemnly declare in court, that he 
believes in his conscience his cause is just. 

"That all pleadings, processes, and records in courts, shall be 
short, and in English, and in an ordinary and plain character, 
that they may be understood, and justice speedily administered. 

"That all trials shall be by twelve men, and as near as may be 
peers, or equals, and of the neighborhood, and men without 
just exception. In cases of life, there shall be first twenty four 
returned by the sheriff for a grand inquest, of whom twelve 
at least shall find the complaint to be true; and then the twelve 
men or peers, to be likewise returned by the sheriff shall have 
the final judgment. But reasonable challenges shall be always 
admitted against the said twelve men or any of them. 

"That all fees in all cases shall be moderate, and settled by the 
Provincial Council and General Assembly, and be hung up in a 



EARLY COURTS OF PENNSYLVANIA. 45 

table in every respective court; and whosoever shall be convicted 
of taking more, shall pay two-fold, and be dismissed his employ- 
ment, one moiety of which shall go to the party wronged."^ 

These provisions were enacted into law at assemblies 
held December 10, 1682,2 and March 1, 1683. ^ Indeed 
the first and third paragraphs were at the latter session, 
included among the "fundamental laws" not to be 
altered without the consent of the governor and six- 
sevenths of the freemen of the province.* This early 
attempt to discriminate between the general body of 
law and certain laws which were regarded as "more 
essentially requisite" to the well being of the state is 
of interest to the student of constitutional law. It 
shows that at this early period the feeling was present 
that some laws, not necessarily political, ought to be 
marked out for a special sort of permanence; a feeling 
that has led to the development of the modern state 
constitution, absurdly complex and overloaded with non- 
political details. 

Notable, also, are the provisions for the commence- 
ment of actions by an informal complaint and for 
brevity and simplicity in the pleadings and cour"!" records, 
which although in keeping with the primitive local 
custom were as code provisions a radical departure 
from the common law, too radical, in fact, to withstand 
the growth of professional feeling in the eighteenth cen- 
tury. Penn's more liberal contemporaries would not 
have thought of imposing upon a raw community the 
artificial system of England in its entirety, but few 
would have committed themselves to so radical a stand 



^ Charter and Laws of Pennsylvania, 100. 

^ Charter and Laws of Pennsylvania, 117. 

^ Charter and Laws of Pennsylvania, 128. 

^Charter and Laws of Pennsylvania, 154; Reinch's Colonial 
Common Law, Essays in Anglo-American Legal History, Vol. I, 
397. 



46 EARLY COURTS OF PENNSYLVANIA. 

for permanent reform. As it happened lawyers soon 
emigrated to the province, bringing with them their 
cherished technicalities, and the old forms slowly but 
surely crept into use. Penn, indeed, was too much of a 
utilitarian to fully realize how deeply even the more 
cumbersome and fantastic features of the common law 
were rooted in the habits and customs of the people. 
We are' reminded of his famous colloquy with Mr. 
Recorder Howell at his trial: — 

Penn. "I desire you would let me know by what law it is 
you prosecute me and upon what you ground your indictment." 

Recorder. "Upon the common law." 

Penn. "Where is that common law?" 

Recorder. "You must not think that I am able to run up 
so many years and over so many adjudged cases which we call 
common law to answer your curiosity." 

Penn. "This answer I am sure is very short of my question 
for if it be common, it should not be so hard to produce." 

Penn, like Bentham, would seem to have the best of 
the argument, but a century and a half passed before 
New York broke the chains of tradition in the code of 
1848. 

After a "prosperous passage of about two months," 
Penn arrived before New Castle on the twenty-seventh 
of October, 1682, and demanded livery of seisin from 
the commissioners appointed by the Duke of York. 
The ceremony took place on October twenty-eighth and 
is thus reported by John Moll: — 

"Whereupon by virtue of the power given unto us by the 
abovementioned letters of attorney, we did give and surrender 
in the name of his royal highness, unto him the said William 
Penn, Esq., actual and peaceable possession of the fort of New 
Castle, by giving him the key thereof, to lock upon himself 
alone the door, which being opened by him again, we did deliver 
also unto him one turf, with a twig upon it, a porringer with 
river water and soil, in part of all what was specified in the 



II 



EARLY COURTS OF PENNSYLVANIA. 47 

said indenture or deed of enfeoffment from his royal highness, 
and according to the true intent and meaning thereof."^ 

One of his first acts, after taking possession, was to 
commission six justices of the peace for New Castle and 
to send out notices for the holding of a court. ^ At this 
court, which was attended by several of the council, 
as well as the justices, Penn delivered an address stating 
his purpose to call an assembly and recommending the 
magistrates, in the interim, to follow the laws of the 
Duke of York. Before the end of the year the province 
of Pennsylvania was divided into three counties, Phila- 
delphia, Bucks, and Chester (which replaced Upland), 
and the lower territories into three also, New Castle, 
as before, while of the two counties into which the Whore- 
kills had been divided, Deal became Sussex, and St. 
Jones, Kent. The county courts continued as already 
constituted, and for some time the boards of justices, 
therein assembled, exercised most of the functions of 
local government, such as the assessment of taxes, the 
erection of jails, the allotment of land to settlers and 
the abatement of public nuisances.^ The number of 
justices in any county varied from time to time with the 
pressure of business, the willingness or ability of those 
chosen to perform their duties or the favor of the council. 
Sometimes a man of importance was commissioned as 
justice for the whole province. 

Under the Duke of York's laws the attendance of the 
justices was enforced by a fine of ten pounds for every 
day's absence, and there are entries of such fines in the 
records of the courts.* Under the Act of May 10, 1685, 



^ Hazard's Annals of Pennsylvania, 606, quoting Records 
of Court of New Castle, Recorder's Office, B. 9, 407. 

2 Hazard's Annals of Pennsylvania, 596. 

3 Charter and Laws of Pennsylvania, 233, 237; Pennypacker's 
Colonial Cases, 78, 92; Sussex Records (Turner), 55, 83. 

^ Charter and Laws of Pennsylvania, 3, 176; Upland Court 
Records, 189. 



48 EARLY COURTS OF PENNSYLVANIA. 

(ch. 176) the same policy was continued, but the fine 
reduced to thirty shillings. When possible the justices 
were assisted by the presence of the governor, members 
of the council or judges of the provincial court, after its 
establishment, all of whom were ex officio of the commis- 
sion of the peace. In the minutes of the court of Bucks 
County it is noted that on the 4th and 11th day, 1 mo., 
1683, the governor, William Penn, was present and held 
an orphans' court. The county courts with their vague 
and indefinite jurisdiction in civil and criminal causes 
and county affairs would seem to have been legarded 
with favor by Penn, who was averse to complicated 
procedure; hence at the first assembly held at Chester, 
December 7, 1682, there is little said of the courts, 
although in the "Great Body of Laws" then adopted 
will be found most important modifications of the 
common law both as to persons and property.^ 

At the session, in March, 1683, it was enacted that in 
every precinct three persons should yearly be chosen 
as common peacemakers, to whom differences might be 
submitted for arbitration and whose findings should be 
as conclusive as those of the county court. In the 
minutes of the provincial council, 7th, 9 mo., 1683, will 
be found a case "referred to the peacemakers and 
in case of refusal to the County Court." ^ Voluntary 
arbitration was then an accepted method of settling 
disputes in England, particularly in cases involving 
merchants' accounts, enforced by bond conditioned to 
submit to the award, and arbitration, bv rule of court. 



^ Lands were made liable for debts "except where there 
was issue and then one half of the land," the principle of set-off 
was accepted, the recording of deeds regulated and a mild 
criminal code adopted. Charter and Laws of Pennsylvania 
109, 118. 

2 I Colonial Records, 34, 7, 9 mo., 1683; see, also, Sussex 
Records (Turner) 97, 116, for the election of peacemakers. 



EARLY COURTS OF PENNSYLVANIA. 49 

was adopted by Statute 9 and 10 William III, eh. 15. We 
have also seen that from the earliest period the practice 
prevailed in New York and its dependencies. The office 
of peacemaker, however, seems to have survived only 
until 1692 when the assembly decided that the law was 
not in practice. Arbitration was long a popular method 
of trying cases and beginning with the Act of January 12, 
1705,^ a law for reference by rule of court in the spirit 
of the statute of William III, there is a long series of 
acts perfecting this method of disposing of litigation. 
The early dockets of the supreme and common pleas 
courts are full of rules for references and voluntary 
submissions. 

At the session of 1683 it was enacted that the first 
process in every suit should be the exhibition of a com- 
plaint fourteen days before trial, that the defendant 
should be summoned ten days before trial and furnished 
with a copy of the complaint, which was required to be 
delivered to him at his dwelling house. The jurisdiction 
of the county courts was also more clearly defined. 

"That all actions of debt, Accompt, or Slander, and all actions 
of Trespass, shall be henceforth first tryed by there respective 
County Court, where the Cause of action did arise. 

^ II Statutes at Large, 242. The Society of Friends had 
regulations of their own for submitting all differences between 
members to their monthly meetings. See the publications 
of the Genealogical Society of Pennsylvania, Vol. IV, 141. 
In 1707 James Logan writes to William Penn: "William Rake- 
straw has had me before the meeting for not granting him the 
lot near the bridge, after Francis Plumstead had applied to 
thee for it, and, as he pretends here, got a grant for it; but 
the six Friends to whom it was referred, declared it as their 
sentiments, upon a full hearing, that William has no manner 
of claim to it, either in law or equity, but that he has had full 
satisfaction, and shall condemn and retract his abuse against 
thee especially, of which shall send copies when past in the 
meeting." Memoirs of Historical Society of Pennsylvania, Vol. X, 
258. The Statute of WilHam III would seem to have been first 
suggested by John Locke. Board of Trade Journal, December 
18, 1696 (Mss. Historical Society of Pennsylvania, Vol. IX, 288). 



50 EARLY COURTS OF PENNSYLVANIA. 

"And if any person shall think himself aggrieved with the 
Judgement of the County Court, That then, such person may 
Appeal to have the same tryed before the Governour and Council; 
Provided always that the same be above twelve lbs. And that 
the person appealing, do put in good, and sufficient Security, 
to pay all Costs and Damages, if hee shall be cast, as also to pay 
the Cost and Charges of the first Suit."^ 

The legislative activity of Penn and the assembly 
during the early days of the colonization of Pennsyl- 
vania was such as to render it difficult to follow all the 
changes in procedure. No colony started with a more 
complete and original code, but much was necessarily 
experimental and was gradually modified under the 
influence of practical experience. The change in the 
dynasty and the political vicissitudes of the proprietor 
were also disturbing elements and an atmosphere of 
uncertainty surrounds much of the legislation prior to 
Penn's second visit to America. In 1693, when Penn's 
government was suspended and Governor Fletcher of 
New Y^ork in charge, an investigation showed the rolls 
of the laws in confusion and not passed under the great 
seal. There was no certain evidence either that they 
had been transmitted to the privy council for approval, 
although David Lloyd and John White stated that they 
knew that Penn had delivered some at least of the laws 
to the king in council.^ In 1694 some of the laws were 

^ Charter and Laws of Pennsylvania, 129. 

2 Minutes of Provincial Council, May 24, 1693, 1 Colonial 
Records, 379, 380. Penn under date of 25, 7 mo. 1689, instructed 
Deputy Governor Blackwell "to collect ye Laws that are in 
Being, and send them over to me in a sticht book, by ye fifirst 
opportunity, which I have so often and so much in vaine de- 
sired." I Pennsylvania Archives (4th Series), 106; 1 Colonial 
Records, 276, 2, 11 mo. 1689-90. It would seem that Penn 
had contemplated periodic revisions of the whole code, 1 Colonial 
Records, 42, 24, 1 mo. 1684; 151-2, 1, 2 mo. 1687; letter of 
Penn to Council, Pennsylvania Magazine of History, Vol. 33, 
308; Chapter 142 of the Acts of 1683, Charter and Laws of 
Pennsylvania, 155. 



II 



EARLY COURTS OF PENNSYLVANIA. 51 

sent over, for on August first of that year Penn appeared 
before the committee on trade and plantations and 
objected to the act about recording deeds. On the 
third of August following the attorney-general gave his 
opinion on the acts and the committee agreed to approve 
of nineteen, to repeal two and to hold five until the gen- 
eral assembly had given them further consideration. 
From the titles, which alone are given in the journal of 
the board of trade, the acts referred to are apparently 
those passed in 1693 under Governor Fletcher and 
include one "about appeals to the Supream Court." ^ 
On December 31, 1697, Penn laid some more laws before 
the commissioners of trade^ but the minutes do not 
state what they were or what action was taken on them. 
However, this much is certain, that in their more general 
provisions these laws w^ere recognized and to some extent 
observed, but the unsettled political conditions, brought 
about partly by the absence of the proprietor after 
1684 and the English revolution of 1688, led to con- 
firmations, reenactments and repetitions of statutes in 
varying phraseology, which must have caused confusion, 
particularly as the laws were not at this time allowed 
to be printed, manuscript copies being filed in the 
county courts w^th the president or clerk. ^ Hence, the 

^ Journal of the Board of Trade (Mss. Historical Society 
of Pennsylvania, Vol. VII, 309), August 3, 1694. 

In 1694 the speaker informed the house that the laws passed 
by the last assembly, and transmitted to the king and council, 
were lodged with the king's attorney, "who expects twenty 
guineas for perusing them, so that the same are not disallowed." 
I Votes of Assembly, 82, 25, 3 mo. 1694. 

^ Journal of the Board of Trade, December 31, 1697, Vol. X, 
386. 

^ I Colonial Records, 18, 23, 3 mo. 1683. The jurisdiction 
of the courts prior to 1700 has been admirably described by 
the late Lawrence Lewis, Jr., Esq., in a paper read before the 
Historical Society of Pennsylvania March 14, 1881, and re- 
printed in I Pennsylvania Bar Association Reports, 353. 



52 EARLY COURTS OF PENNSYLVANIA. 

text of acts passed before 1700 must be accepted with 
considerable reserve and it is difficult to determine 
just how far the more experimental features were en- 
forced. 

The county courts were vested with criminal juris- 
diction in all except such important crimes as treason, 
murder and manslaughter and, after 1693, burglary, rape 
and arson. At times, however, a special commission of 
oyer and terminer was issued to some of the justices to 
try a special offender or to clear the jail. The offenses 
for which indictments were most frequently found and 
trials had were for drunkenness, larceny, profanity, 
assault and battery and breach of the peace, offenses 
against morality, "selling rum to the Indians," speaking 
disrespectfully of the magistrates and breaking the 
Sabbath. In the lower counties there are occasional 
arrests on suspicion of piracy and smuggling. The 
following entry in the Chester County court records 
carries a faint echo from Monmouth's Rebellion:— 

"Ordered that the sheriff take into his custody the body of 
David Lewis upon suspicion of treason, as also the body of 
Robert Cloud for concealing the same; for that he the said 
Robert Cloud being attested before this court, declared that 
upon the 3d day of the weeke before Christmas last at the house 
of George Foreham, the said David Lewis did declare in his 
hearing that he was accused for being concerned with the Duke 
of Monmouth in the West Country."^ 

On the civil side the practice at this period did not 
differ materially from that under the Duke of York, 
although there is a gradual improvement in the forms 
and methods of procedure and in the use of legal terms, 
as the courts acquired experience or became better 

^ Chester County Records, 6th, 8 mo. 1685; 5 Hazard's Penn- 
sylvania Register, 156. The case of Cock v. Rambo, Penny- 
packer's Colonial Cases, 79, is an illustration of the practice 
in a criminal case from the binding over to final judgment. 



EARLY COURTS OF PENNSYLVANIA. 53 

informed as to their duties through the importation of 
law books into the province. Although without legal 
training, the justices lived in a time when a knowledge 
of the rudiments of the law and the ordinary forms of 
conveyancing were essential to a gentleman, or mer- 
chant of importance, and a copy of Dalton's Justices 
with the acts of assembly would meet most of the 
requirements of a rustic community. Some at least of 
the justices were drawn from the same class as supplied 
the quarter sessions in the rural districts of England. 

A difficulty seems to have confronted them in prop- 
erly upholding the dignity of the courts. A rule of the 
Philadelphia County court for 1686, after reciting that 
many disorders had been committed in the courts of this 
county, partly through ignorance and partly through 
negligence of otherwise well-meaning persons, goes on 
to order — 

"That plfs, dfts, and all other psons speake directly to the 
point in question, & yt they put in their pleas in writing (this 
being a Court of record) & that they forbeare reflections & 
recriminations either on the Court, Juries or on one another; 
under penalty of a fine."^ 

Nor were the judges always free from fault them- 
selves. Justice Luke Watson of Sussex County was in 
1684 twice fined by his colleagues for "smoakin tobacco 
in the Court house, "^ the first time fifty and the second 
time one hundred pounds of tobacco, an instance where 
the punishment certainly fitted the crime. Another 



^ Pennypacker's Colonial Cases, 99. In the previous year 
Thomas Howell was fined one shilling for breach of a rule. 
"Hee saucilie ansered Let the Court gett it how they can." 

^ Sussex County Records (Turner), 109. Watson was 
expelled from the provincial council in 1686, I Colonial Records, 
129, 10, 3 mo. 1686, but reinstated, I Colonial Records, 177, 10, 
3 mo. 1688. 



54 EARLY COURTS OF PENNSYLVANIA. 

justice was fined five shillings for swearing.^ In the 
same county in 1687 one Thomas Jones refused to attend 
court when summoned and a constable and two justices 
were sent to fetch him, whom he roundly cursed. The 
record adds : — 

"The said Jones being brought to the Court, the Court told 
him of hi^ misdemeanor, and told him he should suffer for it; 
he told the Court he questioned their power, soe the Court 
ordered the Sheriff and Constable to secure him and they 
carryed & dragged him to ye smith shop where they put irons 
upon him, but he quickly got the Irons off and escaped, he 
having before wounded several persons' legs with his spurs 
that strived with him, and when they was goeing to put him in 
the Stocks, before that they put him in Irons, he kicked the 
Sheriff on the mouth and was very unruly and abusive, and soone 
got out of the Stocks." ^ 

The grand jury of Philadelphia County in 1686 pre- 
sented Justice James Claypoole "for endeavoring by an 
indirect way to preposess Judge Moore in a case yt was 
to be tryed before him in the provinciall court, being 
by us lookt upon to be of a dangerous Consequence," 
and "for menacing and abusing ye jurors in ye triall of 
John Moon which was an infringement of ye rights and 
properties of ye people."^ 

In the trial of cases the procedure was characteristic- 
ally simple. If the plaintiff failed to serve his process 
he was nonsuited; if the defendant failed to appear 
judgment was entered against him. If both parties 
were present the defendant was called on for his answer, 
which could set up any defense legal or equitable or 
claim a set-off.* The law required the pleadings to be 

^ Sussex Records (Turner), 110. He could have cited year- 
book precedents in his favor. 

2 Sussex County Records Mss., quoted I Pennsylvania Bar 
Association Reports, 361. 

3 Pennypacker's Colonial Cases, 116 (1686). 

* See Reynolds v. Simpson, Pennypacker's Colonial Cases, 
77 (1685). 



EARLY COURTS OF PENNSYLVANIA. 55 

short and in English. The parties would sometimes 
leave the case to the bench without a jury,^ particularly 
in the lower counties, but if a jury was called, it con- 
sisted invariably of twelve men. After verdict judg- 
ment was entered and the practice survived for some 
time of entering judgments in kind — perhaps reaching a 
climax in an entry of judgment for "one thousand of 
six-penny nails, and three bottles of rum."^ 

As to process of execution, we know little except 
that the proceedings would seem rather summary. An 
order of council was made in 1686 "yt there should be 
tenn days Respite between judgm^ given in ye County 
Courts within this Province and Territoryes in all Civill 
Causes, and signing the execution thereoff, and that in 
the Prov^^ Court no Execution shall be served until 
eight days after judgm^ given. "^ To this the assembly 
in 1687 made strenuous objection and urged that the 
order be revoked, whereupon the council decided to 
leave the matter to the discretion of the courts.* There 
are recorded several petitions to the council for relief 
against executions on judgments entered by default, 
and others for relief against vexatious and oppressive 
executions. In one of these a widow complains that 
judgment having been obtained against the estate of 
her deceased husband, the sheriff had levied on the 



^ In Proprietor v. Wilkins, Pennypacker's Colonial Cases, 89 
(1685-6), a criminal case in Philadelphia, after the defendant 
had elected to be tried "by the bench of justices without a jury," 
Hersent, the attorney-general, contended that it was contrary 
tq law to try a prisoner without a petit jury. His contention 
was overruled, but the prisoner was convicted and fined. 

2 Sussex County Records Mss., quoted I Pennsylvania Bar 
Association Reports, 364, 

3 I Colonial Records, 122, 2, 2 mo. 1686. 

^ I Colonial Records, 157, 158, 11,3 mo. 1687. In Philadelphia 
the practice was for the justices to sign the order for an execu- 
tion. Pennypacker's Colonial Cases, 108; so, also, in the 
provincial court, I Colonial Records, 95, 11, 5 mo. 1685. 



56 EARLY COURTS OF PENNSYLVANIA. 

plantation where she and her children dwelt, although 
there was sufficient property elsewhere to satisfy the 
debt. The council sent .for the sheri^ and told him that 
if there were other effecfs' of the" 'd'e6edent he ought not 
to levy on the plantation where the widow and children 
lived. ^ In other cases relief seems to have been given 
on account of the poverty of the defendant, a practice 
that would pave the way for the debtor's exemption 
law.^ 

In criminal cases the sentences were usually limited to 
fines, whippings or the stocks. Sentences to terms of 
imprisonment were rare; the colony could ill afford to 
spare the labors of any individual, however depraved, 
and still less was it inclined to support him in idleness. 
Penn's incarceration invNewgate. h'ad familiarized him 
with the evils of prison life and he expressly ordained 
that prisons should be workhouses.^ Such prisons as 
were built at this time were neither particularly com- 
modious nor strong. In 1688 the council found it neces- 
sary to reprimand the sheriff of Sussex for permitting 
a dangerous prisoner to be at large. The prisoner mag- 
nanimously sent word to the council that he would yield 
himself up rather than "ye sheriff should suffer."^ A 
similar reprimand was administered to the sheriff of 
Philadelphia for permitting two prisoners suspected of 
piracy to go at large, to which the sheriff replied, that 
they never went without his leave and a keeper, "w'^^ 
hee thought might have been allowed in hott weather."^ 



1 I Colonial Records, 124, 9, 2 mo. 1686. 

2 I Colonial Records, 125, 9, 2 mo. 1686, also pa^es 153, 156, 
161. 

^ Charter and Laws of Pennsylvania, 100. 

^ I Colonial Records, 199, 21, 12 mo. 1688-9. 

^ I Colonial Records, 531, August 8, 1699. Part of Patrick 
Robinson's house seems to have been used as a prison. Watson's 
Annals of Philadelphia (1850), Vol. I, 356. 



EARLY COURTS OF PENNSYLVANIA. 57 

By the Act of March 1, 1683/ the justices of the 
county courts were required to sit twice a year as an 
orphans' court. The name as well as the original pur- 
pose of this court was derived from the court main- 
tained by the corporation of London, which, by imme- 
morial custom, had charge of the estates of orphans of 
freemen of the city. The practice and jurisdiction of 
the court, which will be discussed later, differed from 
that of its prototype but was not distinctly settled at 
this time, and we find the provincial council taking 
cognizance of matters that subsequently were assigned 
to this tribunal or to the register's court, such as the 
appointment of administrators, and sale of land for 
debts. 

Prior to 1684 there existed in the province no tribunal 
having' cognizance of appeals other than the provincial 
council, which, in some degree, supplied the place of the 
general court of assizes under the Duke of York's Laws. 
As the colony grew, the ever increasing number of appeals 
took up more and more of the council's time and made 
this duty exceedingly burdensome, not to speak of the 
inconvenience to the suitors in traveling to Philadelphia 
with their witnesses for a hearing de novo. To remedy 
this inconvenience the Act of May 3, 1684^, was passed, 
which provided that there should be five provincial 
judges, appointed by the governor, any three of whom 
should form the provincial court and sit twice a year 
in Philadelphia, while two of them should every spring 
and fall go on circuit into every county and there hold 
court. The court was to hear and determine all appeals 
from inferior courts and all causes, criminal and civil 
both in law and equity not determinable in the county 
courts. In 1685 the ntimber of judges was reduced to 



Charter and Laws of Pennsylvania, 131. 
Charter and Laws of Pennsylvania, 168. 



58 EARLY COURTS OF PENNSYLVANIA. 

three, but the original number was restored by the Acts 
of 1690 and 1693.^ A commission was accordingly issued 
by Penn to five judges, of whom Nicholas Moore was 
named first, the commission to be in force for two 
years. ^ The law did not fix any definite period for ser- 
vice and the commissions were drawn for various 
periods. In one instance it is noted in the minutes of 
the council that the commission is to continue "only 
for this present court. "^ Jealousies quickly arose as to 
the geographical apportionment of the judges and in 
1687 the assembly requested that at least one of the 
judges be named from the lower counties.* In 1690 the 
appointment of the judges caused a split in the council, 
the members from the lower counties objecting to the 
naming of but one judge from the territories and also 
demanding that, according to what they stated was the 
proprietor's example, two commissions issue, one for 
the province and one for the counties, so that each would 
have a chief justice from its own district. Unable to 
prevail on their colleagues, the members from the lower 
counties held a separate meeting and drew up commis- 
sions to suit themselves.^ The keeper of the great seal, 
however, refused to seal these commissions and at a 
regular meeting of the council, subsequently held, the 
action of these members was denounced as irregular 
and annulled. This was the first open manifestation 
of the dissatisfaction of the territories with the union 
with Pennsylvania, which continually increased until 
a separate government was obtained. 

The provincial court did not at once command or 
obtain the respect and influence due to the chief judicial 



^ Charter and Laws of Pennsylvania, 178, 184, 225; I Colonial 
Records, 205, 26, 12 mo. 1688-9. 

2 I Colonial Records, 68, 12, 7 mo. 1684. 

3 I Colonial Records, 290, 10, 2 mo. 1690. 
^ I Colonial Records, 157, 11, 3 mo. 1687. 

I Colonial Records, 304, 21, 9 mo. 1690. 



EARLY COURTS OF PENNSYLVANIA. 59 

tribunal of the colony. It was founded in the most 
trying times, when political dissensions among the lead- 
ing colonists and war and revolution in England dis- 
tracted the province. The terms of office were irregular, 
the compensation wholly inadequate and the journeys 
on circuit tedious and even dangerous. It is not to be 
wondered at that it was difficult to induce properly 
qualified men to accept a place on the bench and that 
nominees for that honor sought excuses to decline the 
office. No traces of the records and opinions of the court 
at this time have come down to us and they cannot 
have been bulky, for, when the council in 1688 sent for 
the records, they were informed by the clerk that "they 
were not recorded otherwise than in a quire of paper. "^ 
The duties of the judges did not at first compel them to 
grapple with legal problems with a view to the value 
of their decisions as precedents. The correction of 
errors arising on issues of fact and the trial of the 
more serious crimes probably made up the bulk of 
the business. As time went on the court strengthened 
its position, and appeals to the council became less and 
less frequent, until in the early eighteenth century the 
two bodies, executive and judicial, assumed their normal 
functions. 

It is sad to relate that Nicholas Moore, the first chief 
justice of the provincial court, was impeached by the 
assembly within a year after the creation of the court. 
Moore was a physician as well as president of the Society 
of Free Traders and a large purchaser of land from 
Penn. Although not a Friend he immediately obtained 
a position of influence, was elected to the assembly and 
was speaker in 1684. While capable and energetic he 
lacked tact and discretion and assumed an arrogant 
tone which offended his fellow members of the assembly 

1 1 Colonial Records, 202, 25, 12 mo. 1688-9. 



60 EARLY COURTS OF PENNSYLVANIA. 

and gave still greater offense after his elevation to the 
bench. In the minutes of the assembly there are 
numerous instances of his interruptions and protests 
during the consideration of bills. ^ It was reported to 
the council, during the session of 1684, that the speaker 
had said: "The proposed laws were cursed laws" and 
"hang it Damn them all."^ The principal complaints 
against his conduct on the bench seem to have come 
from the lower counties. Ten formidable articles of 
impeachment were presented, among which were the 
following : — 

"The said Nich. Moore, Judge, having that high Trust Lodged 
in him for the Equall Distribution of justice, without respect of 
Persons, the said Judge Sitting in Judgemt at New Castle, 
hath presumed to cast out a person from being of a Jury, after 
ye said Person was Lawfully attested to ye True Tryall 
of ye Cause, thereby rending an Innocent & Lawful Person 
Infamous in the face of the County, by rejecting his attestation 
after Lawfully Taken, and Depriving the plantif of his just 
Right. 

"The said Nich. Moore, Sitting in judgmt, did in ye towne of 
New Castle, refuse a verdict brought in by a Lawfull Jury, and 
by Divers threats & Menaces, and Threatening ye jury with ye 
same of Perjury and crim of their Estates, forced ye said Jury 
to goe out so often — until they had brought a Direct Contrary 
verdict to the first. There, by preventing justice, and wounding 
the Libertyes of ye free people of this Province and Territories 
in the Tenderest point of their Privelege, and violently Usurping 
over ye Consciences of the Jury. 

"The said Nich. Moore assuming to himselfe an Unlimited 
and unlawful Power, did. Sitting in Judgmt at ye aforesaid 
Towne of New Castle, wherin two persons stood Charged in a 
Civil action, it being in its own Nature only Trover & Convertion, 
and ye pretended Indictmt raised it no higher, notwithstanding 
the said Moore did give the judgmt of fellony, Comending the 
Defendant to be Publickly Whipt, & Each to be fined to pay 
three fould, thereby Tyranizeing over the persons, Estates 

1 See Votes of the Assembly, Vol. I, 32. 
2 1 Colonial Records, 55, 17, 3 mo. 1684. 



EARLY COURTS OF PENNSYLVANIA. 61 

and reputations of the people of this Province and Territories, 
Contrary to Law and Reason. 

"The said Nich. Moore, Sitting in judgmt at Chester, did in a 
mo?t Ambitious, Insulting, & Arbitrary way, reverse and Im 
peach the judgmt of ye Justices of ye said County Court, and 
Publickly affronting the members thereof, although the matter 
came not regularly before the said Circular Court, thereby draw- 
ing the Magistrates into the Contempt of ye people, and Weaken- 
ing their hands in the administration of justice."^ 

A committee of five was appointed to manage the 
impeachment, one of whom was Abraham Mann, whom- 
we have previously seen engaged in the prosecution of 
Justice Moll before the court of assizes in New York. 
The council showed little disposition to further this 
impeachment but treated the accusers with due civility 
and fixed a time for the hearing. Moore, however, was 
by no means inclined to submit tamely to the proceed- 
ings, and in the house, of which he was still a member, 
accused Abraham Mann of being "a person of seditious 
spirit," in which he was probably right. The house, 
however, expelled Moore and proceeded to collect evi- 
dence for the prosecution. They met with a decided 
obstacle in the conduct of Patrick Robinson, clerk of 
the court, who declined to produce the records of the 
court, declaring that they were "written in Latin where 
one word stood for a sentence, and in unintelligible char- 
acters which no person could read but himself, no, not 
an angel from Heaven."^ But this did not end his 
offenses; he declared the articles of impeachment were 
drawn "hob nob at a venture" and threatened to "have 
at" the speaker when he was "out of the chair." The 
house issued a warrant for Robinson's arrest and requested 



^ I Colonial Records, 83, 15, 3 mo. 1685; Votes of the Assem- 
bly, Vol. I, 35; Charter and Laws of Pennsylvania, 499. 

^ Those who have had occasion to read his handwriting will 
testify to the truth of this statement. 



62 EARLY COURTS OF PENNSYLVANIA. 

the council to remove him from, office. From the hear- 
ing on the impeachment Moore contemptuously absented 
himself, but the evidence was thought sufficiently grave 
by the council to suspend the judge from his official 
functions until the matter was finally decided. The 
council showed every disposition to treat Moore with 
leniency,, although it had been testified that he had 
called the members thereof "fooles and Logerheads, 
and said it were well if all the Laws had drapt and that 
it would never be good Times as Long as ye Quakers 
had the administration." Knowing the proprietor's 
predilection for Moore the house addressed a letter to 
Penn on the subject, a quotation from the last para- 
graph of which sTiows that in spite of their quarrels and 
jealousies they still regarded him with affection. 

"Dear and honored Sir, the honor of God, the love of your 
person, and the preservation of the peace and welfare of the 
government, were, we hope, the only centre to which all our 
actions did tend, and although the wisdom of the assembly 
thought fit to humble that aspiring and corrupt minister of 
state, Nicholas Moore, yet to you, dear sir, and to the happy 
success of your affairs our hearts are open, and our hands ready 
at all times to subscribe ourselves, in the name of ourselves and 
all the freemen we represent, Your obedient and faithful freemen. 

JOHN WHITE, Speaker."! 

By one excuse after another the council prevented 
further proceedings in the impeachment until the matter 
was lost sight of in the discussion of more important and 
perplexing affairs of state which soon required atten- 
tion. 

The provincial council, although not strictly a court, 
for a long time exercised judicial functions and, through 
the fortunate preservation of its minutes, is by far the 
best known of the early tribunals. The exercise of 

1 Janney's Life of Penn, 278. 



EARLY COURTS OF PENNSYLVANIA. 63 

judicial functions by the governor and council was 
strictly in accordance with the custom in other propri- 
etary and royal provinces, and that judicial and execu- 
tive functions were found incompatible in Pennsylvania 
so early in its history is a clear indication of the rapid 
growth of a democratic and progressive spirit in that 
province. 

The extraordinary growth of the colony, the long 
absences of the proprietor in England and the large 
measure of self-government which the citizens enjoyed, 
threw upon the council an amount of execu- 
tive business which made judicial duties particularly 
onerous, and numbers of petitions and appeals were 
referred back to the courts. Aside from their judicial 
duties the governor and council, as an executive body, 
appointed the judges and magistrates, regulated com- 
merce, conducted negotiations with the Indians and 
the other colonies, subdivided counties, laid out towns, 
established fairs and markets, ordained the principal 
highways, bridges and ferries, and exercised a general 
supervision over local administration. As a legislative 
body, they drew up all the laws, prior to 1693, when 
that right was assumed by the assembly, being finally 
transferred to that body by the Frame of Government of 
1701. By that instrument also, the council, no doubt 
to its great relief, was expressly deprived of judicial 
functions. 

During the first twenty years of its existence the 
amount of judicial business transacted in the council 
was large; prior to the establishment of the provincial 
court it was the only general tribunal and was not only 
a court for hearing appeals but also a court of first 
instance for such suitors as could obtain a hearing 
before it. This, of course, was natural at the first 
settlement, as a matter of practical necessity. We 
therefore find in the early part of the minutes, trials for 



64 EARLY COURTS OF PENNSYLVANIA. 

petty offenses and the collection of small debts. They 
seem to have been obliged even to discipline their own 
members, for at the fifth meeting of the council one of 
its members was fined five shillings "for being dis- 
ordered in Drink." ^ The council seems to have exer- 
cised its good offices in composing differences. In 1684 
there is the following entry : — 

"Andrew Johnson Pl. Hance Peterson Deft. There being a 
difference depending between them, the Govr. &. Council advised 
them to shake hands and to forgive One another. And Ordered 
that they should Enter in bonds for fifty pounds apiece, for 
their good abearance; which accordingly they did. It was also 
Ordered that the Records of Court concerning that Business 
should be burnt. "^ 

There are other cases where the council would seem 
to have acted more as a final board of arbitration than 
as judges in the strict sense. ^ 

Prior to the establishment of the provincial court in 
1684, the council heard all appeals, and although after 
that time such appeals were discouraged, they never- 
theless continued to be brought before the council for 
some years. Besides regular appeals, there were numer- 
ous petitions for executive clemency, complaints against 
severe sentences in criminal cases and, in civil cases, 
petitions for relief against judgments entered by default 
and against executions which bore too severely on the 
debtor. In one early case, on appeal from the county 
court of Philadelphia, it was shown to the council that 
the case concerned the title to land in Bucks County, 
when the law required cases to be tried where the cause 
of action arose. The council remitted the case to the 
court of Bucks County and fined the Philadelphia court 
"forty pounds for giving judgment against law."^ 

1 I Colonial Records, 4, 15, 1 mo. 1683. 

2 I Colonial Records, 52, 13, 3 mo. 1684. 

3 I Colonial Records, 65, 14, 6 mo. 1684. 
^ I Colonial Records, 20, 20, 4 mo. 1683. 



EARLY COURTS OF PENNSYLVANIA. 65 

As an illustration of the practice on appeal to the 
council the case of Grantham v. Wollaston^ may be 
cited : — 

One Wollaston purchased a negro from Grantham 
and gave a bond for £26, 15 s. in payment. Judgment 
was entered on this bond by the New Castle County 
court, execution issued and a portion of the defendant's 
land sold by the sheriff to Grantham for ;^30, 10 s. and 
the latter was put in possession. Wollaston on the 18th, 
3 mo., 1687, petitioned to the council at Philadelphia 
averring that the county court had denied him an 
appeal to have his case heard in equity. After reading 
a copy of the proceedings the council directed the 
secretary to take security for the prosecution of the 
appeal at the next provincial court and ordered the 
county court to stop all proceedings. The provincial 
court on the 10th, 2 mo., 1688, made an order restoring 
Wollaston to possession, which, it was explained later 
by one of the judges, was not intended to be executed 
"until the debt and damages were satisfied." On 
the 7th, 12 mo., 1688-9, Wollaston again petitioned the 
council, complaining of a forcible entry and detainder, 
whereupon it was resolved that a warrant be drawn, 
directed to the justices of the peace dwelling "nearest 
to ye place where ye fforce is alleaged,"to make a view 
and, if they found no force, to require the sheriff to 
summon a jury to inquire into the facts and thereupon 
to imprison the offender and restore quiet possession 
to the petitioner. On March 4, 1688-9, the clerk of the 
county court returned to the council the finding of the 
jury, which was in effect that Grantham had been the 
victim of the forcible entry. "This was judged by ye 
board to be a great affront and contempt of their author- 



1 I Colonial Records, 161, 18, 3 mo. 1687, and see pages 172, 
193, 210, 215-18. 



66 EARLY COURTS OF PENNSYLVANIA. 

ity." Grantham's wife then petitioned the council 
setting forth her husband's side of the case, and the 
assembly also remonstrated against the action of the 
provincial court and requested the council to rehear 
the whole matter "as the supreame judges of this gov- 
ernment." Governor Blackwell and the council, accord- 
ingly, proceeded to New Castle where, on March 13 and 
14, 1689, the facts were again reviewed. Both parties 
were called in and "endeavors used with both of them 
to agree the matter between themselves," but in vain. 
Wollaston declared he had better be without the land 
than pay ii^SO, 10 s. for it, and on the other hand Gran- 
tham refused to take back the negro, contending justly 
that the defendant had had several years' use of his 
purchase while the plaintiff had been out his money. 
The council thereupon resolved and ordered that the 
sheriff's sale to Grantham should be confirmed and that 
he should be restored to possession, that this should be 
in full of all demands against Wollaston, debt, damages 
and charges, and "that this be the finall conclusion & 
judgement of this board in that case." 

It has been observed that the judicial powers 
exercised by the council resembled those wielded by 
the court of star chamber in its purest and best days,^ 
but however beneficial such control was in correcting 
the errors of an amateur judiciary, it was contrary to 
the constitutional principles then uppermost in English 
minds after a century-long struggle with absolutism. 
Accordingly, when the revision of the Frame of Govern- 
ment was under consideration in 1701, the assembly 
petitioned that no person should be answerable before 
the governor and council or in any place but an ordinary 
court of justice.^ Penn replied that he knew of no per- 

^ McCall's address before the Law Academy (1838); I Penn- 
sylvania Bar Association Reports, 386. 
2 II Colonial Records, 34, 20, 7 mo. 1701. 



EARLY COURTS OF PENNSYLVANIA. 67 

son obliged so to answer/ but he inserted the following 
clause in the new charter: — 

"That no person or persons shall or may, at any time hereafter, 
be obliged to answer any complaint, matter or thing whatsoever 
Relateing to Property before the Govern^ and Council, or in any 
other place but in the ordinary Courts of Justice, Unless appeals 
thereunto shall be hereafter by Law appointed. "^ 

The council was also the only court for the trial of 
serious crimes until 1685, when that jurisdiction was 
conferred on the provincial court. Important cases of 
this kind were those of the Proprietor against Pickering 
for counterfeiting^ and against Margaret Mattson^ for 
witchcraft. The latter case is peculiarly interesting as 
illustrating the superstition of the times and in its 
outcome was most creditable to the common sense of 
Penn and the jury. The accusation against the woman 
was that she had bewitched the witness's cattle, but the 
evidence was mostly hearsay, as the defendant herself 
cleverly pointed out. The verdict of the jury was: 
"Guilty of haveing the Comon fame of a Witch, but not 
Guilty in manner and forme as Shee Stands Indicted." 
The defendant was permitted to go, on entering bond 
for good behavior. The fear of witchcraft did not dis- 
appear for some time in Pennsylvania. In 1695, the 
grand jury of Chester County presented "Robert Roman 
of Chichester for practising Geomacy according to Hidon 
and Divining by a Stick." The accused submitted to 
the court, was fined five pounds and ordered "never 
to practice the arts" but behave himself well, which he 
promised. His books, "Hidon's Temple of Wisdom," 

1 II Colonial Records, 38, 29, 7 mo. 1701. 

2 II Colonial Records, 56, 28, 8 mo. 1701. 

^ Pennypacker's Colonial Cases, 32; I Colonial Records, 29, 
24, 8 mo. 1683, and page 32. 

* Pennypacker's Colonial Cases, 35; I Colonial Records, 40, 
27, 12 mo. 1683. 



68 EARLY COURTS OF PENNSYLVANIA. 

''Scot*s Discovery of Witchcraft," and "Cornelius 
Agrippa's Necromancy," were ordered to be brought 
into court. ^ Another accusation of witchcraft was 
brought to the attention of the council in 1701 but 
dismissed as trifling. 

The jurisdiction of the council in admiralty matters 
was a source of much trouble to them.^ There are 
numerous cases in the minutes relating to seamen's 
wages, pilots' fees, violations of the navigation laws and 
complaints against masters for ill treatment of pas- 
sengers. An example of the last is the case of March v. 
Kilner^ where the master of the ship was charged with 
beating the passengers and permitting the crew to drink 
their beer. Kilner denied everything, "only ye kicking 
of the maid." He was reprimanded and advised to 
"make up the business w^^ accordingly he did." The 
proprietor was, by his charter, personally charged with 
the duty of seeing to the enforcement of the English 
navigation acts and that fines and duties were imposed 
and collected according to that complicated and, as the 
colonists thought, burdensome system. The responsi- 
bility for the execution of these laws rested upon the 
council and many were the complaints to the home 
government of their indifference and laxity in these 
matters. Indeed Penn was obliged to write to them in 
1697 urging the enforcement of the laws and stating 
that it had been reported to him "that you doe not onlie 
wink att but Imbrace pirats, shipps and men."* The 

^ Hazard's Pennsylvania Register, Vol. V, 159. In Sussex 
County Edward Southrin was accused of having conversed 
with the devil. Sussex County Records (Turner), 36. 

2 I Colonial Records, 8, 21, 1 mo. 1683, and pages 35, 69. 

3 Pennypacker's Colonial Cases, 29; I Colonial Records, 23, 
7, 7 mo. 1683. 

4 I Colonial Records, 494, 9 February, 1697-8; Board of Trade 
Journals, Mss. Historical Society Pennsylvania, Vol. X, 268, 
287, 333. 



EARLY COURTS OF PENNSYLVANIA. 69 

council indignantly denied this accusation and reported : — 

"Wee know of none that has been entertained here, unless 
Chinton & Lassell, with some others of Avery's Crew, that 
happened for a smal time to sojourn in this place, as they did 
in some of the neighboring governments; but as soon as the 
magistrats in Philadelphia had received but a Copie of the 
Lords Justice's proclamation, gott all that were here appre- 
hended, & would have taken the Care & Charge of securing y^, 
untill a Legall Court had been erected for their trial, or an 
opportunity had presented to send y^i to England; but before 
that Could be effected, they broke goale & made their escape 
to New York, where Hues & Crys wer sent after ym."i 

Nevertheless the records of the time are full of refer- 
ences to piracy, and Pennsylvania was reported to have 
"become ye greatest refuge & Shelter for pirats & Rogues 
in America." Undoubtedly the "pirats and rogues" 
took advantage of the mild temper and humanity of 
the Quaker justices. In 1698 the town of Lewes was 
plundered, a woeful account of which is contained in a 
letter from the local justices to Lieutenant-Governor 
Markham, and in 1700 it was reported to Penn that the 
great Captain Kidd was lying off Cape Henlopen and 
trading with some of the inhabitants.^ 

To deal with such matters, a court of vice admiralty 
was established, by the Crown, for Pennsylvania and the 
territories in 1697, of which Colonel Robert Quarry was 
appointed judge. Quarry was a former governor of 
South Carolina, a vain and quarrelsome person who 
disliked the Friends and was bitterly opposed to the 



1 I Colonial Records, 495, 10 February, 1697-8. 

2 I Colonial Records, 532, August 9, 1699 and see page 549; 
Sussex Records (Turner), 42. August 17, 1696, Mr. Randolph 
delivered to the Commissioners of Trade a paper relating to the 
ill execution of the Acts of ParHament and a list of names of 
Pirates and Scotchmen inhabiting and trading in Pennsylvania; 
Memoirs of Historical Society of Pennsylvania, Vol. IV, part 2, 
260. 



70 EARLY COURTS OF PENNSYLVANIA. 

proprietary system of government . Almost immediately 
after his appointment his court came into conflict with 
the county court of Philadelphia. Certain goods having 
been seized by the collector of customs under a warrant 
issued by Colonel Quarry, a judge of the county court 
at the instance of David Lloyd, a lawyer and member 
of the c'ouncil, granted a writ of replevin under which 
they were taken from the collector. Quarry was exceed- 
ingly indignant at this and complained both to the 
home government and to the governor and council, who 
made such apologies as they could, handed over the 
replevin bond to him, and reprimanded the judge, who 
tendered his resignation.^ David Lloyd, however, was 
as obstinate and hot-headed as Quarry himself. At 
the succeeding county court he brought an action against 
the marshal for the detaining of the goods. In the 
words of Quarry — 

"Ye marshall being called to defend the sute, hee produced 
in his owne Justificaon His maties Lres pats, undr ye broad 
seal of ye High Court of Admiraltie, with the Judges warrt for 
ye seizure aforesaid, which sd patent having in the frontis piece 
his most sacred maties effigies stampt, with the sd seal adpend- 
ant, the sd David Lloyd, in a most insolent & disloyal manner, 
taking the sd Commission in his hand & exposing it to ye people, 
did utter & publish these scurilous & reflecting words following, 
viz: — what is this? do you think to scare us wt a great box 
(meaning ye seal in a tin box) and a little Babie; (meaning ye 
picture or effigies aforesaid); 'tis true, said hee, fine pictures 
please children; but wee are not to be frightened att such a rate; 
& many more gross & reflecting expressions on his matie to 
ye like effect. "^ 

For this and other insults to the court of admiralty, 
Penn, by order of the board of trade, suspended Lloyd 
from the council and dismissed him from all public 



^ I Colonial Records, 535, December 21, 1699, and see page 545. 
2 I Colonial Records, 576, May 14, 1700. 



EARLY COURTS OF PENNSYLVANIA. 71 

employment and he from that time became a bitter 
opponent of the proprietor.^ Nevertheless in spite of 
stringent laws and a more systematic patrol of the 
coast by cruisers it was long before pirates ceased to 
be a menace to commerce. In 1712 Logan wrote, ''We 
have been extremely pestered with pirates who now 
swarm in America and increase their numbers with 
every vessel they take."^ In 1718 Governor Keith in 
calling the council's attention to the losses sustained 
by the colony through piracy, said that he was informed 
that Teach had been lurking for some days in and about 
Philadelphia and that he suspected that many of the 
pirates who had surrendered under an offer of pardon 
still kept up a correspondence with their companions 
abroad. The Teach referred to was the notorious pirate 
"Blackbeard" who was shortly after killed in an en- 
counter 'with a vessel fitted out by Virginia for his 
capture.^ 

It must not be supposed that either the provincial 
court or the council, in its judicial capacity, was a court 
of last resort. Under the charter the right was reserved 
to the king to hear and determine appeals from all 
judgments given in the province, and until the Revo- 
lution there was no court of last resort in Pennsylvania. 
A reference to this subject is contained in the commis- 
sion of William and Mary to Governor Fletcher wherein 
it is provided that if either party to a civil cause is dis- 
satisfied with the judgment of the superior court of the 

1 Memoirs Historical Society of Pennsylvania, Vol. IV, part 2, 
SOL 

2 Watson's Annals of Philadelphia (1850), Vol. II, 218; III 
Colonial Records, 43, August 11, 1718. 

^ Blackbeard's head was struck off and brought back in 
triumph on the end of the bowsprit. Afterwards his skull 
was made into the bottom of a very large punch bowl long used 
at the Raleigh Tavern at Williamsburg, Va.; Watson's Annals 
of Philadelphia (1850), Vol. II, 221. 



72 EARLY COURTS OF PENNSYLVANIA. 

province "they may then appeale unto us in Our privy 
Council, provided the matter in difference exceed the 
real value and Sum of three hundred pounds Sterling."^ 
The Act of October 28, 1701,^ contained provisions for 
appeals to England but no limit of money value vras 
fixed. While the right to such appeals to England was, 
in this colony, unquestioned, the difficulty and expense 
of prosecuting them was such as to render them infre- 
quent. In 1685 an appeal to England was allowed by 
the provincial court upon entry of security, but from 
the discussion in the council it would seem that the 
appellant failed to enter security as required.^ 

In December, 1699, Penn returned to America and 
began the work of reconstructing the government of 
the province, which had been restored to him on the 
express condition that he would put an end to the exist- 
ing state of confusion.* The political and constitu- 
tional history of provincial Pennsylvania has been ably 
and thoroughly treated elsewhere^ and it is not our 
purpose to refer to it except as it affected the courts. 
Suffice it to say that the period of Utopian and paternal 
experiments had closed and that thereafter the pro- 
prietor and his successors were engaged in a struggle 
to maintain a difficult position between two fires ; on 
the one side a democracy, selfish, narrow and indi- 
vidualistic, and on the other a home government, critical 
and contemptuous, that regarded the colony as little 
more than a nest of republicans and smugglers. Penn 
found the assembly determined to strengthen its posi- 
tion and after much fruitless discussion, ^ranted a charter 



1 I Colonial Records, 313, 21, 9 mo. 1690. 

2 II Statutes at Large, 148, § 5. 

3 I Colonial Records, 95, 11,5 mo. 1685, an4 see page 98. 

* Board of Trade Journals, July 13, 1694; Mss. Historical 
Society of Pennsylvania, Vol. VII, 300. 

^ Shepherd's Proprietary Government in Pennsylvania (Co- 
lumbia University Studies in History, 1896). 



EARLY COURTS OF PENNSYLVANIA. 73 

conferring very extended powers on the legislative body 
and containing little else of constitutional importance.^ 
Nothing was said of the judges. The provincial court 
was then an insignificant factor in the political life of 
the province and the organization of the courts was left 
to be regulated by an act of assembly, which will be 
referred to presently. 

With the adoption of the charter of privileges of 1701, 
the government of the province assumed a form that it 
was to retain until the Revolution. The power of pro- 
posing and enacting laws passed to the assembly and 
the council ceased to exercise judicial powers. More 
important still, the council ceased to be an elected body 
and was thereafter appointed by the proprietor or in 
his absence by his lieutenant-governor. The effect of 
this was to throw into the assembly the abler spirits of 
the opposition and greatly strengthen that body, while 
the council, chosen from among the friends of the 
governor or proprietor, was thereafter regarded as repre- 
senting the proprietary interests rather than those ot 
the populace. 

One humble court has not been referred to, that of 
the coroner. The following is a specimen of a verdict 
taken in 1699 in Chester County: — 

"We whose names are undervv^ritten, summoned and attested 
by the Coroner to view the body of Sarah Baker, haveing made 
strict enquiry, and alsoe had what evidence could be found, 
attested to what they know, and wee can find noe other but that 
it pleased Almighty God to visit her with death by the force of 
Thunder; and to this we all unanimously agree. "^ 

Who will say that this is not quite equal in intelli- 
gence to the verdict of the average coroner's jury at the 
present time? 

1 II Colonial Records, 54, 28, 8 mo. 1701; Proceedings of the 
Constitutional Conventions of Pennsylvania of 1776 and 1790, 31. 

2 Chester County Records, 6, 5 mo. 1699, reprinted in Hazard's 
Pennsylvania Register, Vol. V, 156. 



CHAPTER 11. 

In 1701 William Penn was called back to England to 
defend his proprietorship. Before his departure a gen- 
eral revision of the earlier legislation was undertaken at 
the sessions of the assembly held at New Castle in 1700 
and at Philadelphia in 1701. The acts there passed, 
one hundred and fourteen in number, seem, in a sense, 
to have been regarded as supplying the previous legis- 
lation and were passed with the expectation of being 
presented to the privy council for approval, as required 
by the charter. In fact, when the board of trade in- 
quired of Penn, on his return, as to whether the laws 
received from him were a complete body of all the laws 
of the province, he replied that he believed they were 
the present body of laws,^ and it will be noticed that the 
compilations of the eighteenth century begin with the 
Acts of 1700. 

Among these acts was one of October 28, 1701, 
entitled "An Act for Establishing Courts of Judicature 
in this Province and Counties Annexed."- Its origin 
was as follows: Edward Shippen, for the two previous 
years chief justice of the provincial court, and John 
Guest, the then chief justice, both members of the 
council, brought into the assembly on October 7th, a 
bill for establishing the courts, which was "unanimously 
rejected." Some few days after, David Lloyd, who 
was not then a member of either council or house, pro- 
posed a bill which was voted to be adopted with amend- 
ments, and Richard Hallowell and Isaac Norris were 
appointed a committee to draw up the bill, with the 
amendments. The bill met with no apparent opposi- 



1 II Statutes at Large, 461. 

2 II Statutes at Large, 148; Charter and Laws of Pennsylvania, 
311. 



EARLY COURTS OF PENNSYLVANIA. 75 

tion in the council. Without repeating its provisions in 
full, which would be tedious, it may be said by way of 
summary that the act provided for the holding of the 
"County Courts or Sessions" at stated periods, three 
justices to constitute a quorum, with jurisdiction in 
civil and criminal matters, capital cases excepted. These 
courts were required to observe as nearly as possible 
"respecting the infancy of this Government and capaci- 
ties of the people, the methods and practice of the King's 
court of common pleas in England; having regard to the 
regular process and proceedings of the former county 
courts; always keeping to brevity, plainness and verity 
in all declarations and pleas, and avoiding all fictions 
and color in pleadings." Maritime affairs, not cogniz- 
able in the admiralty courts, were to be tried in a special 
manner before a jury of "merchants, masters of vessels 
or ship carpenters." The county courts also received 
equity powers, with the right of appeal to the provincial 
court from any decree or sentence made or given by the 
justices. The provincial court was to consist of five 
judges, appointed by the governor, three of whom were 
required to sit twice a year in Philadelphia, and two, 
at least, to go on circuit through the counties to try 
capital cases and serious crimes and hear appeals from 
the county courts. The governor, however, was to 
grant writs of error and writs of habeas corpus. The 
powers and duties of the orphans' courts were also 
defined and the forms of certain writs prescribed; all 
former laws relating to the courts were repealed. 

There is little doubt that David Lloyd was the original 
draftsman of the bill and while the act, as finally adopted, 
contained in its main outline features afterwards recog- 
nized by the colonists as most convenient for Pennsyl- 
vania, it was, like other acts attributed to Lloyd, ver- 
bose, involved and overloaded with minor details of 
practice. Lloyd, no doubt, thought that he was faith- 
fully adhering to the simplicity that had marked the 



76 EARLY COURTS OF PENNSYLVANIA. 

legal procedure in the province from the beginning, but 
he was a lawyer, and, like most of his brethren, could 
not divest himself of his professional circumlocution or 
exclude from his plan pet theories of his own. In the 
form adopted the act did not prove acceptable to the 
advisers of the Crown. 

Penn himself seems, on second thought, to have found 
some objectionable features in the act and desired that 
it might not be confirmed but sent back to be amended. 
The lords commissioners for trade and plantations 
reported that the act, "so far from expediting the 
determination of lawsuits," would, as they conceived, 
"impede the same," and, accordingly, the act was 
formally disallowed and repealed on February 7, 1705, 
by the queen in council.^ One of the objections that 
occurred to the minds of the English lawyers was to that 
clause which directed the courts to avoid all "fictions 
and color in pleadings." A doubt was entertained as 
to whether this might not preclude an action of eject- 
ment. In this they were not far from the real purpose 
of the draftsman of the act, as would appear from a 
debate in the provincial council in December, 1704, 
upon a petition by Thomas Revel, the plaintiff in an 
ejectment, who complained that his case had been 
put off for nearly three years. John Moore, counsel for 
the plaintiff, and David Lloyd, for the defendant, being 
summoned before the council, Lloyd boldly argued that 
that method of trial being fictitious, was repugnant to 
the law of the province.^ Lloyd, however, was clever 

1 II Statutes at Large, 456, 482. 

»II Colonial Records, 185, 19, 11 mo. 1704. Penn & Logan 
Correspondence, Memoirs of Historical Society of Pennsylvania, 
Vol. X, 5. Lloyd attempted to regulate the practice in eject- 
ment in his bill of 1706 which was rejected by the governor. 
His idea was to require a real lease, entry and ouster and to do 
away with the fictitious proceeding — "A new practice, allowed 
only in Westminster Hall." II Colonial Records, 354, February 
24, 1706-7. 



EARLY COURTS OF PENNSYLVANIA 77 

enough at a later day, to use the action of ejectment 
with success in the Frankfort Company's case, which 
will be referred to hereafter. 

The repeal of the Act of 1701 left the administration 
f justice in a confused state. There had been some 
debate in the session of the assembly of 1705 upon the 
subject of courts, but the repeal of the act was not 
known. Upon receipt of the order in council, Governor 
Evans called the assembly in special session, in Septem- 
ber, 1706,^ and presented to that body an act for estab- 
lishing courts, drawn up, it was said, by some 
practitioners therein. The assembly, however, requested 
that the matter be referred to the new house, which met 
in October, 1706, and accordingly at the following 
session this was the first matter under discussion, the 
governor laying his bill before the house with his open- 
ing address. The assembly, or rather David Lloyd who 
dominated that body, had other views and presented 
them in what is described as a "long and tedious bill," 
which, on being read in council, was found to depart 
very widely from the plan proposed by the governor's 
advisers.^ 

We have not the text of these rival bills, which brought 
about a deadlock between the governor and the house, 
but it is apparent that both sides were struggling for 
the control of the courts and in view of the expected 
surrender of the government to the Crown, both w^ere 
equally anxious to establish their position before that 
event.^ 

The plan endorsed by the governor included county 
courts with civil jurisdiction, exclusive in cases under 

1 II Colonial Records, 261, September 19, 1706. 

2 II Colonial Records, 271, 14, 9 mo. 1706. In a speech the 
governor refers to it as "the longest perhaps that ever was 
drawn up in America." II Colonial Records, 313. 

2 Penn & Logan Correspondence, Memoirs of Historical 
Society of Pennsylvania, Vol. X, 180. 



78 EARLY COURTS OF PENNSYLVANIA. 

ten pounds, and criminal jurisdiction, except in capital 
cases which were to be tried by special commissions of 
oyer and terminer; a provincial court for the whole 
province, to sit ordinarily at Philadelphia but to go on 
circuit twice a year, with original jurisdiction concurrent 
with the county courts in cases over ten pounds as well 
as on appeal from the county courts, and lastly, a court 
of equity' to be held by the governor and council.^ The 
assembly ever jealous of the centralization of authority 
objected to a separate court of chancery and to the 
exercise of original jurisdiction by the provincial court. ^ 
On the other hand, the governor pointed out that the 
bill proposed by the assembly contained precisely the 
same faults that had caused the rejection of the Act of 
1701; that it went into matters of practice at great 
length which ought to be settled by rule of court; that 
the chancery practice ought to conform to that in the 
other English dominions; that there was too much 
leniency shown to debtors in the clauses relating to 
executions; that too much power was conferred on the 
court of the city of Philadelphia; that the provision for 
the payment of the judges was inadequate, and that 
the proprietors' rights were interfered with in the 
clause providing for the dismissal of the judges on the 
address of the assembly and for the appropriation of all 
fines and forfeitures to the support of the courts.^ 

The controversy began politely enough, for the 
governor and council were anxious to settle the admin- 
istration of justice on a firm basis and to persuade the 
assembly to allow a fixed salary to Roger Mompesson, 
a good lawyer who had been persuaded to accept the 
office of chief justice. But as time passed and each 



1 II Colonial Records, 268, 3, 8 mo. 1706. 

2 II Colonial Records, 263, 23, 7 mo. 1706; 266, 25, 7 mo. 
1706; 276, 27, 9 mo. 1706. 

3 II Colonial Records, 272, 16, 9 mo. 1706. 



EARLY COURTS OF PENNSYLVANIA. 79 

side adhered obstinately to its own view the tone of 
the respective messages became warmer. The governor 
hinted that if further delay occurred he would establish 
the courts by ordinance and charged the assembly with 
grasping for power. 

"It might reasonably be thought a very easy business to 
establish the courts by a law, without raising new disputes 
and contending for such Grants of Power as are not essential 
to their Constitution, nor were ever in the People for these 24 
years past, since this has been a colony."^ 

To which the assembly rejoined that whoever advised 
the governor to establish courts by ordinance was an 
enemy to the welfare of the province; that they were 
not striving for power — 

"but for what are essential to y^ Administration of Justice and 
agreeable to an English Constitution, and if we have not been 
in possession of this these 24 years, we know where to place 
the fault, and shall only say, tis high time we were in the enjoy- 
ment of our rights. "2 

It is needless to refer at greater length to the rhetorical 
flourishes of the combatants, which did not add par- 
ticularly to clarity of reasoning. Conferences were 
held and bitter language used, the matter at one time 
taking the form of a personal controversy between the 
hot-headed young governor and the equally fiery speaker, 
when the latter declined to rise when addressing the 
governor at one of these debates.^ 

The assembly then proceeded to impeach James 
Logan, the secretary of the province, charging him with 
attempting to subvert the charter and set up arbitrary 
government. The governor, having twice adjourned 



1 II Colonial Records, 298, 23, 10 mo. 1706. 

2 II Colonial Records, 304, January 15, 1706-7. 

3 II Colonial Records, 326, February 6, 1706-7. 



80 EARLY COURTS OF PENNSYLVANIA. 

the courts pending the discussion and now despairing 
of reaching a conclusion/on February 22, 1707, issued 
an ordinance for the establishment of the courts, under 
a clause in the charter which authorized the proprietor 
to make wholesome ordinances for the preservation of 
the peace and the better government of the people.^ 
The expedient was somewhat daring, as the charter 
further provided that such ordinances should not bind 
or charge any person for or in their "life, members, 
freehold, goods or chattels." In this ordinance the 
provincial court is first called the "Supream Court" of 
Pennsylvania.^ The assembly prepared a bitter remon- 
strance against the ordinance and adjourned.^ 

Under this ordinance, which embodied the undis- 
puted features of the proposed bills in a clear and con- 
cise form, the courts acted during the remainder of 
Evans's and the first two years of Gookin's administia- 
tion, until, in 1710, when tired of quarreling over non- 
essentials, a court act was passed.* By this act a court, 
called the "Supream Court of Pennsylvania," was 
established, consisting of four judges appointed by the 
governor, two to constitute a quorum, with power to 
hear appeals at law or in equity. The jurisdiction and 
practice of the quarter sessions and common pleas were 
elaborately defined and Governor Evans's ordinance was 
followed in the provision that all capital offenses should 



^ II Statutes at Large, 500; Charter and Laws of Pennsylvania, 
319; II Colonial Records, 349, February 21, 1706-7. 

2 In the list of acts before the Commissioners of Trade in 
1694 is one purporting to be entitled, "Law about appeals to 
the Supream Court," but if this is the Act of 1693 it should 
have teen Provincial Court. Board of Trade Journals, Mss. 
Historical Society of Pennsylvania, Vol. VII, 309. 

3 II Colonial Records, 362, March 4, 1707. 

* February 28, 1710-11, II Statutes at Large, 301; II Colonial 
Records, 552, February 28, 1710-11. 



EARLY COURTS OF PENNSYLVANIA. 81 

be tried before coramissioners of oyer and terminer 
specially appointed for the occasion. 

This act was, with minor modifications, the same as 
that proposed by the assembly in 1706, for it appears 
in the minutes that on November 2, 1710, a bill for 
establishing courts prepared by a former assembly was 
read, which, being very long, was left to the further 
consideration of the house. Governor Gookin was of 
the opinion that the courts could be better regulated 
by ordinance and that three judges were sufficient for 
the supreme court, but ultimately gave in on most of 
the points formerly in dispute. The act is indeed long 
and complicated, embodying an almost complete code 
of practice in both civil and criminal cases and on 
appeal, with very definite limitations placed on arrests 
in civil actions. One proposal of the governor was 
adopted. It having been suggested by the justices that 
the common pleas should be separated from the sessions 
of the peace, "for that the Holding 'em together per- 
plexes Bench Juries, parties & Witnesses,"^ the act pro- 
vided that the terms of the quarter sessions should 
begin on Mondays or Tuesdays and of the common pleas 
on the Wednesdays following. By a fee bill adopted 
the same day, the chief justice was allowed thirty shil- 
lings and the other justices twenty shillings for every 
day they sat in court. ^ Both of these acts were repealed 
by the queen in council on February 20, 1713, by advice 
of the solicitor general, Sir Robert Raymond, who was 
of the opinion that the practice provided would multiply 
trials at law in plain cases and make proceedings in law 
and equity insufferably dilatory and expensive.^ 

1 II Colonial Records, 549, February 10, 1710-11. 

2 II Statutes at Large, 331. Twenty shillings was the sum 
which Governor Evans considered "too small for any person 
duly qualified to accept of." II Colonial Records, 273, 16, 9 mo. 
1706. ' 

3 II Statutes at Large, 548; I Pennsylvania Archives (1st 
Series), 157. 



82 EARLY COURTS OF PENNSYLVANIA. 

It was no doubt very irritating to the anti-proprietary 
party that acts upon which they had expended time 
and thought should be continually repealed by the 
Crown upon pretexts that probably concealed the true 
motives for such action. The assembly had, however, 
hit upon a method of preserving its legislation, tempo- 
rarily at least. Under the charter, all laws were re- 
quired to be submitted to the council within five years 
of their enactment. The colonists took as much time 
as they pleased before submitting the acts, and, as a 
result, the laws generally remained in force nearly five 
years, and when the assembly was notified of their 
repeal, new acts on similar lines were passed. Against 
such tactics the commissioners of trade vainly pro- 
tested.^ During the intervals between the repeal of 
the old and the passage of the new court acts the gov- 
ernor maintained the courts either by special commis- 
sions to the judges or by general ordinances. 

One act did succeed in obtaining favorable recom- 
mendation, that of March 27, 1712-13, relating to the 
organization of and powers of orphans' courts, a com- 
prehensive statute which defined the duties of that court 
in relation to the estates of decedents, and the care of 
the estates of minors, and became the basis of all subse- 
quent legislation extending and strengthening the juris- 
diction of that admirable tribunal. 

It would take up too much space to go over all the acts 
that fell before the criticisms of the council. One, that 
of May 15, 1715,^ regulated the taking of appeals to 
Great Britain and required the appellant to give recog- 
nizance in double the amount of the judgment. The 

1 II Statutes at Large, 554; III Statutes at Large, 441, 467. 
On the other hand, Penn complained of the expense to which 
he was put in endeavoring to have the acts approved by the 
crown officers. 

2 III Statutes at Large, 32, 440, 466. 



EARLY COURTS OF PENNSYLVANIA. 83 

objection to this act was that there was no sum limited 
for which an appeal might be brought, as provided in 
the instructions to the governors of all the plantations, 
but notice of this repeal does not seem to have reached 
Pennsylvania, and the act was printed as in force in all 
compilations of the laws down to the Revolution. The 
first definite reference to these appeals is, as we have 
seen, in the commission of William and Mary to Governor 
Fletcher, which limited appeals to cases involving more 
than three hundred pounds. Additional instructions 
were sent to the proprietors in 1726,^ directing the sus- 
pension of execution pending the final determination 
of appeals, and in 1753 still more explicit instructions 
were issued to a number of colonies including Pennsyl- 
vania. By these instructions the governor and council 
were directed to hear appeals from the courts and if 
any of the judges who tried the case appealed were 
members of the council they were not to vote but to 
give the reasons for their decision. From, the judg- 
ment of the provincial council an appeal was to be 
allowed to the king in council provided the matter in 
controversy involved five hundred pounds, and in cases 
of less than that amount where future rights might be 
bound or the king's revenue affected. The appellant 
was required to enter security for the judgment and 
costs and pending the appeal execution was to be sus- 
pended, unless security was entered for restitution.^ 

^ Charter and Laws of Pennsylvania, 395; I Pennsylvania 
Archives (1st Series), 196. 

2 II Pennsylvania Archives (1st Series), 107, see also, VIII 
New Jersey Archives (1st Series) 190. For appeals in other 
colonies, see Winthrop v. Lechmere, 1 Thayer's Cases on Con- 
stitutional Law, 34; VII Connecticut Colonial Records, 571 
(1727); Frost v. Leighton (Mass. 1738), II American Historical 
Review, 229; Perry v. Randolph, Barradal's Reports, 2 Virginia 
Colonial Decisions, 22 (1726). In the introduction to Volume 
II of Acts of the Privy Council of England, Colonial Series (1910) , 



84 EARLY COURTS OF PENNSYLVANIA. 

The directions for a judicial hearing before the provin- 
cial council must have been given in ignorance of the 
fact that under the Frame of Government of 1701 the 
council in Pennsylvania did not exercise judicial powers. 
In 1718 two murderers, Hugh Pugh and Lazarus 
Thomas, attempted to gain a reprieve by an appeal to 
the king, but the council ignored their petition on 
account of the notoriety of their crimes.^ The case of 
Father gill v. Stover,"^ involving the admissibility in evi- 
dence of a letter from the secretary of the land office 
to a deputy surveyor, is said by the reporter to have 
been affirmed on appeal to the king, and the docket 
of the supreme court shows that such an appeal was 
taken. ^ In fact there are several entries of this sort. 
In Brown v. McMurtrie, April Term, 1763, judgment is 
entered for the plaintiff on a special verdict, whereupon 
Mr. Galloway "prays leave to appeal to the King in 
Council," which is granted on giving security agreeable 
to the act of assembly and paying the costs. Below in 
another handwriting is the entry, "Judgment of the 
Supream Court confirmed by his Majesty in Council."* 
There is a similar entry in Nixon v. Long, where Chew 
and Galloway appeared for the plaintiff and Dickinson 
and Ross for the defendant. Judgment for the plaintiff 
was entered on a demurrer to the evidence and on 
appeal to the king the judgment was "confirmed."^ There 
are two other entries of appeals in 1765,^ and at April 

will be found an interesting account of the practice of the 
council on appeal, while in the text are numerous examples of 
appeals from the West India Islands as well as from the colonies 
on the American Continent between 1680 and 1720. 

1 III Colonial Records, 30, May 8, 1718. 

2 1 Dallas's Reports, 6 (1763). 

3 April Term, 1763, Docket No. 3, page 450. 

4 April Term, 1763, Docket No. 3, page 448. 
^ April Term, 1765, Docket No. 4, page 93. 

^ September Term, 1765, Docket No. 4, pages 120, 181. 



EARLY COURTS OF PENNSYLVANIA. 85 

Term, 17G7, there are three suits by the same plaintiff 
against different defendants, in which appeals to the 
king were taken, security entered and transcripts of 
the record issued, but the result is not recorded.-^ 

It is interesting to note, that to the appeals from the 
various colonies and from the Channel Islands is to be 
traced the jurisdiction of the judicial committee of the 
privy council. The standing committee for trade and 
plantations was, by an order of 1691, directed to hear 
appeals and report thereon to the king in council.^ Few 
cases came before the committee at first, but gradually 
their proceedings took a judicial form, the judgment 
of the m-embers became a judicial decision, and the 
adoption of their report a pro forma matter. At this 
early period their decisions are but occasionally noticed 
in the English reports, but Lord Mansfield, in his speech 
on the Stamp Act, stated that he had in his early prac- 
tice been much concerned in the plantation causes 
before the privy council and so had become acquainted 
with American affairs.^ 

The attempted appeal of Pugh and Thomas was based 
on the fact that seventeen of the grand jury which had 
indicted them and eight of the petit jury who found 
them guilty were Quakers who had qualified by affirma- 
tions instead of oaths. This calls attention to a diffi- 
culty that had long troubled the colony. The conscien- 
tious scruples of the Friends against judicial oaths had 

^ Swijt V. Hawkins, Lightfoot and Jones, Docket No. 4, page 
591. 

^ Finlason's History of the Judicial Committee of the Privy 
Council, 39; V Pennsylvania Archives (2d Series), 436, 658. 
While there was a standing committee for hearing appeals, 
these petitions seem to have been frequently referred to special 
committees. The present judicial committee dates from the 
Act of 3 & 4 William IV, chapter 4L 

^ Mansfield's speech on the Stamp Act, reprinted in Library 
of Original Sources, Vol. VII, 84. 



86 EARLY COURTS OF PENNSYLVANIA. 

been taken advantage of by their opponents, led by 
Colonel Quarry, to drive them from office and lessen 
their power. ^ An order had been procured from Queen 
Anne enjoining the administration of oaths to all persons 
v/illing to take them, an order which the Quaker justices 
were loath to enforce, while the justices of the church 
party declined to administer affirmations, lest they 
should mistake the sincerity of the affiant's religious 
scruples. Constant friction and mistrials resulted from 
this state of affairs, and more than one act was passed 
on the subject only to meet with technical objections in 
England. 2 

The popularity of Governor Keith enabled him to 
obtain the passage of the Act of May 31, 1718,^ which 
permitted affirmations by such as conscientiously 
scrupled to take an oath, but at the same time restored 
much of the rigorous criminal code of England, which 
the humanity of Penn had prevented from being put in 
force in the province. A few years later the Act of 
May 9, 1724,^ was passed which carefully prescribed 
the forms of declarations of fidelity, abjurations and 
affirmations to be taken by Quakers, with a proviso that 
the act was not to be construed as repealing the Act of 
1718. To this the assembly in 1739 attempted to add 
a supplement for the relief of Scotch Presbyterians, who 
had conscientious scruples against kissing the Bible, 
permitting them to take the oath in the form 
commonly administered in Scotland. Approval of this 
act was refused on the advice of Sir Dudley Ryder and 
Sir John Strange, who criticised its loose wording and 
called attention to the danger of giving way to new 



1 II Colonial Records, 38, 17, 3 mo. 1703. 

2 Shepherd's Proprietary Government in Pennsylvania, 
chapter VII, 351. 

3 III Statutes at Large, 199; III Colonial Records, 63. 

4 III Statutes at Large, 427. 



EARLY COURTS OF PENNSYLVANIA. 87 

scruples about oaths. ^ Subsequently the privy council 
relented and in 1772 an act was passed and approved 
which permitted witnesses to qualify either by a 
solemn affirmation, an oath in the usual form or an 
oath with uplifted hand.^ 

From the passage of the Act of 1718 capital punish- 
ment for the greater felonies was rigorously employed, 
until in 1794, principally through the efforts of Judge 
Bradford, the death penalty was abolished in all cases 
except high treason and willful murder. As a natural 
consequence the number of appeals for executive 
clemency steadily increased and the minutes of the 
council are full of such petitions.^ One of the most 
curious is the following: — 

"A Petition of John Remington, Attorney at Law, delivered 
to the President, was by him laid before the Board and read, 
setting forth that the Petitioner was unfortunately deluded & 
drawn into the idle Diversion of performing the Ceremony of 
making a free Mason, in Order to which a Sport called Snap 
Dragon was prepared, at which the Petitioner was perswaded 
to be present; that unhappily some of the burning Spirit used 
in this Sport was thrown or spilt on the Breast of one Daniel 
Rees, which so burnt or scalded him that in a few days after 
the said Daniel dyed; That Doctor Evan Jones had been indicted 
as Principle for the Murder of the said Daniel Rees, & by a Jury 
of the County was found guilty of Manslaughter; That the 
Petitioner was also indicted as aiding & abetting the said Evan 
Jones, and altho' no Evidence did or could appear to prove that 
the Petitioner had any hand in the throwing or spilling the said 
Liquor on the Body of the said Daniel, or was privy to any De- 
sign or Intention of doing harm to the said Daniel, or to any 
other Person, yet the same Jury had brought in a Verdict of 
Manslaughter likewise against the Petitioner, which if put 
in Execution would tend to the utter Ruin of the Petitioner, 
his Wife, and two small children, & therefore humbly praying 
that the President & Council would be pleased to grant him a 
Pardon; Whereupon the Board are of Opinion that the Petitioner 

1 IV Statutes at Large, 337, 483. 

2 March 21, 1772, VIII Statutes at Large, 239. 

3 See III Colonial Records, 35, June 15, 1718. 



88 EARLY COURTS OF PENNSYLVANIA. 

should be pardoned the Manslaughter aforesaid, and the burning 
in the hand, which by reason thereof, he ought to suffer; But it 
being observed that in the Course of the Tryal a certain wicked & 
irreligious Paper had been produced & read, which appeared 
to have been composed by the said Remington, who had made 
the aforesaid Daniel Rees repeat the same, as part of the form 
to be gone thro' on initiating him as a free Mason; the Board 
therefore agreed that the Pardon should be so restricted as that 
it might not be pleaded in Bar of any Prosecution that should 
hereafter be commenced against the said Remington on account 
of the said scandalous Paper. "^ 

It would seem that with the constantly increasing 
population, a disorderly element was introduced into 
the community that rendered stringent measures 
necessary for the protection of society. In 1726 a riotous 
crowd burnt down the pillory and stocks in the market 
place and the governor was obliged to issue a proclama- 
tion for the suppression of such tumults in the future.^ 
In the newspapers will be found complaints against 
the authorities in England for making the colony a 
dumping ground for criminals and vagabonds. ^ In 
1717 the grand jury present: — 

"Whereas, it has been frequently and often presented by several 
former grand juries for this city, the necessity of a ducking stool 

1 IV Colonial Records, 276, Feb. 3, 1737-8. A full report 
of this affair will be found in the Pennsylvania Gazette, February 
7, 1737-8. It appears that the parties concerned were not Free 
Masons, but practical jokers. 

2 III Colonial Records, 274, October 4, 1726. 

^ As early as 1685 an ecclesiastical offender was offered an 
opportunity to emigrate to the new colony, as appears by the 
Privy Council minutes; "Whereas it has been this day repre- 
sented to his majesty that Christopher Sibthorpe, brazier, is a 
prisoner in Woodstreet compter upon a capias on the Writt 
de excomunicato capiendo, his majesty was pleased to order the 
sheriffs of the city of London (taking good security that the 
said Christopher do forthwith transport himself and family to 
Pennsylvania in America and paying the charges of the court) 
sett him at liberty in order to his sayd voyage." Acts of the 
Privy Council of England, Colonial Series (1910), Vol., II, p. 79, 
§ 176. The exile was an active Friend. 



EARLY COURTS OF PENNSYLVANIA. 89 

and house of correction, for the just punishment of scolding, 
drunken women, as well as divers other profligate and unruly- 
persons in this place, who are become a public nuisance to the 
town in general; therefore, we the present grand jury, earnestly 
again present the same to this Court of Quarter Sessions, desiring 
their immediate care; that those public conveniences may not 
be longer delayed, but with all possible speed provided for the 
detection and quieting such disorderly persons." And a few 
years later, a second inquest, "taking in consideration the great 
disorders and the turbulent behaviour of many people in this 
city, present the great necessity of a ducking-stool for such 
people, according to their deserts."^ 

There are many indictments for forestalling the 
markets and regrating, offenses against public trade 
that excited in that day the popular attention now 
centered on rebates and trusts. 

Some presentments of the grand jury of Philadelphia 
will further illustrate the care of our ancestors for the 
manners and morals of the community. ^ 

^ The Forum, Vol. I, 231. It is a matter of some doubt as to 
whether the ducking-stool ever was actually used in Philadelphia. 
In 1769 a woman was sentenced to be ducked at the end of 
Market street wharf, but we are not informed whether the 
sentence was carried into execution. In 1779 Ann Mease was 
sentenced to the same punishment but the council remitted 
the ducking January 26, 1780. XII Colonial Records, 235. 
In 1781 there was another conviction but the sentence was not 
carried out. In 1824 the supreme court held that the ducking 
stool was not the punishment for a common scold in Pennsyl- 
vania. James v. Commonwealth, 12 Sergeant & Rawle, 221 
(1824). The Act of March 10, 1683, reenacted in 1693, pro- 
vided that a scold should stand one hour in a public place with 
a gag in the mouth. Charter and Laws of Pennsylvania, 144, 
198. This was supplied by the Act of November 27, 1700, 
II Statutes at Large, 85, which provided that the gagged 
person should stand in some public place at the discretion of 
the magistrate. The act was repealed in council because it was 
not stated how long the person should stand gagged and the 
penalty was too great. II Statutes at Large, 466. 

2 Quotations from Mss. Docket, given in Appendix to Vol. I 
of David Paul Brown's Forum, 573. 



90 EARLY COURTS OF PENNSYLVANIA. 

"Philadelphia, the 26th day of the 7th month, 1702. 
"We, the Grand Inquest for this Corporation, do present 
George Robinson, butcher, for being a parson of evill fame as 
a common swarer, and a common drunker, & particularly 
upon the twenty-third day of this instant, for swaring three 
oths in the market-place, & also for utering two very bad 
curses the twenty-sixth day of this instant. Signed in behalf 
of self & fellows, by 



"Submits, and puts himself 
in mercy of the Court." 



"Jno. Pons, ferman." 



"George Robinson, fined xxx s. 
for the oaths and curses." 



"Philadelphia, ss. 
"We, the Jurors for this city, doe present phiUip Eilbeck, 
of Chester County, for that on the twenty-third Day of this 
Instant, at night, at the house of Margaret Garret, in the front 
street, in Philadelphia, aforsd. Did then & theire mennace & 
threaten herman Debeck, by drawing his bagenet and making 
a pass at him, the said herman: & at the same time & place 
abovesaid, did utter three curses, to the terrifiding of the said 
herman & other the Qeen's Leige people, contrary to the laws 
in that case made & provided. Signed in behalf of the Rest of 
the Jurors, this 28th day of the 7th mo., 1702, pr. 



"Appears and submits, and puts 
himself in mercy of the Court.' 



'Jno. Psons, forman." 



"Eilbeck for breach of the 
peace and curses, xxx s." 



"The 3d of the 12th mon: 1702. 
"We of the Grand Jury for the Citty of Philadelphia, do psent 
John Satell for passing of bad counterfeit Coine to Anne Simes, 
on the 2nd of January Last past in her husbands house, now 
Living in Philadelphia, & Also finding the mettal in his pocket, 
which we think the Money was made withall. 

"Signed in behalf of the Rest, 
"Abra. Hooper, foreman." 



EARLY COURTS OF PENNSYLVANIA. 91 

"Philadelphia, ye 4th of the 12th mon., 1702. 
"We, of ye Grand Jury for the Citty of Philadelphia, Do 
psent John Joyse, for having of to wifes at once, which is boath 
against the law of God and man. 

"Signed in behalf of the rest, 

"Abra. Hooper, foreman." 

"Philadelphia, ye 6th of the 3rd month, 1703. 
"We, of the Grand Jury for this city. Doe present Alexander 
Paxton & his wife, for letting a house to John Lovet, he being 
a Stranger, & have not Given security for The In Demnifying 
of this Corporation. 

"Signed in behalf of the rest, 

"Abra. Hooper, foreman." 

"Philadelphia, this third day of November, 1703. 
"We doe also present Jon Furnis & Thomas McCarty & Thomas 
Anderson & henery Flower, barbers, for triming people on first 
days of the weeks, commonly called Sunday, contrary to the 
law in that case made & provided. 

"Signed in behalf of the rest of the Jurors, 

"John Redman, foreman." 

In 1731 an execution took place at New Castle which, 
it is to be hoped, was exceptional in the annals of the 
colonies. Catherine Bevan, together with a servant 
named Peter Murphy, were indicted, tried and found 
guilty of the murder of the woman's husband, Henry 
Bevan. The conviction would seem to have been 
obtained principally upon the confession of the servant. 
By the common law at that time the murder of a husband 
by his wife was petit treason, and the punishment was 
to be drawn and burnt. Accordingly, on September 10, 
1731, the man was hanged and the woman burnt pursu- 
ant to their sentences.^ A gruesome account of the 

^ Such executions were not unusual in England. Sidney refers 
to a number, mentioned in the newspapers, including two 
in 1735, one in 1737, two in 1739 and one as late as 1789. Sidney's 
England in the Eighteenth Century, Vol. II, 299. 



92 EARLY COURTS OF PENNSYLVANIA. 

affair appears in Franklin's "Pennsylvania Gazette" 
for September 23, 1731:— 

"She deny'd to the last that she acted any part in the murder 
and could scarce be brought to own that she was guilty of con- 
senting. Neither of them said much at the place of execution. 
The man seemed penitent but the woman appear'd hardened. 
It was designed to strangle her dead before the fire could touch 
her; but its first breaking out was in a stream which pointed 
directly upon the rope that went round her neck, and burnt 
it off instantly so that she fell alive into the flames, and was seen 
to struggle." 

To return to the courts. At a meeting of the council 
held on November 9, 1719, Governor Keith called 
attention to the repeal of the several acts relating to 
courts, and proposed that the board consider the best 
means of meeting the inconvenience caused thereby. 
The consensus of opinion was that the governor should 
issue special commissions authorizing the justices to 
hold court on the days when they should be held under 
the repealed laws. Similar action was taken in the 
following March in reference to the supreme court, and 
David Lloyd, who was now chief justice, prepared the 
forms of commission. In this way the courts were con- 
tinued until at a meeting of the council. May 12, 1722, 
it was observed that the courts would be "more regu- 
larly and effectually established by ordinance, as they 
are done in some of our neighboring governments, than 
by any particular Commissions," and it was recom- 
mended that the matter be brought to the attention of 
the house of representatives. A bill was promptly 
passed and messaged to the council, where it was referred 
to Richard Hill, Isaac Norris, James Logan and the 
attorney general, Andrew Hamilton, for amendment. 
The bill as amended was returned to the house, and on 
May 22, 1722, became a law.^ 

mi Statutes at Large, 298. 



EARLY COURTS OF PENNSYLVANIA. 93 

This act apparently was never considered by the Crown, 
but, in some manner, was allowed to become a law by 
lapse of time, according to the charter. The reason for 
its escape lies probably in an oversight of the clerks 
of the council rather than in any intention on the part 
of the board to give it even a tacit approval. The act 
appears in a list, under consideration by the board of 
trade in 1739, which the lords commissioners could 
not find to have ever been approved.^ Mr. Paris, the 
agent for the colony, after tedious searches, found some 
of these acts "laid up in a by corner of the Board of Trade 
and covered very thick with dust." In the list the act 
we are discussing is marked "supplied." As a matter 
of fact, three months before the time for its consideration 
had expired, the act had been supplied by the Act of 
August 27, 1727,^ which was repealed by order in council 
S-eptember 21, 1731. In repealing the latter act, the 
point seems to have been overlooked that the Act of 
1722 was revived by the repeal, and the question of the 
Crown's power to pass upon it then was not raised. 

Upon the repeal of the Act of 1727 a special session of 
the assembly was called, and an act passed formally 
reviving the Act of 1722.^ This reviving act seems to 
have been allowed to become a law by lapse of time. 
Mr. Fane, the king's counsel, to whom it was referred 
by the lords commissioners, saw no objection to it. 
The Act of 1722, which in many of its provisions re- 
mained in force until after the Revolution, provided 
for county courts of quarter sessions, composed of 
justices appointed by the governor, three to constitute 
a quorum, and for similar county courts of common 
pleas, to be held after the quarter sessions by justices, 
also appointed by the governor, with authority to hold 



III Statutes at Large, 488. 

IV Statutes at Large, 84. 

November 27, 1731, IV Statutes at Large, 229. 



94 EARLY COURTS OF PENNSYLVANIA. 

pleas of assizes, scire facias, replevins and all manner 
of actions, civil, personal, real and mixed, and to grant 
writs of partition and writs of view. 

As to the supreme court, the Act of 1722 provided 
as follows: — 

"And be' it further enacted by the authority aforesaid, That 
there shall be holden and kept at Philadelphia a court of record 
twice in every year: (That is to say) on the twenty- fourth day 
of September and the tenth day of April, if the same days, or 
either, do not happen to be the First day of the week, and in 
such case the said court shall be held on the next day following; 
which said court shall be called and styled the supreme court of 
Pennsylvania. And that there shall be three persons of known 
integrity and ability, commissionated by the governor, or his 
lieutenant for the time being, by several distinct patents or 
commissions, under the great seal of this province, to be judges 
of the said court, one of whom shall be distinguished in his 
commission by the name of chief-justice. And every of the 
said justices shall have full power and authority, by virtue of 
this act, when and as often as there may be occasion, to issue 
forth writs of habeas corpus, certiorari and writs of error, and 
all remedial and other writs and process returnable to the said 
court, and grantable by the said judges by virtue of their office, 
in pursuance of the powers and authorities hereby given them. 

"Provided always. That upon (any) issue joined in the said 
supreme court, such issue shall be tried in the county from whence 
the cause was removed, before the judges aforesaid, or any two 
of them, who are hereby empowered and required, if occasion 
require, to go the circuit twice in every year, * * * * and to do 
generally all those things that shall be necessary for the trial 
of any issue, as fully as justices of nisi prius in England may or 
can do. 

"And that the said judges, or any two of them, shall have full 
power to hold the said court, and therein to hear and determine 
all causes, matters and things, cognizable in the said court, and 
also to hear and determine all and all manner of pleas, plaints 
and causes, which shall be removed or brought there from the 
respective (general) quartersessions of the peace and courts of 
common pleas, to be held for the respective counties of Phila- 
delphia, Chester and Bucks, as also for the city of Philadelphia, 
or from any other court of this province, by virtue of any of the 



EARLY COURTS OF PENNSYLVANIA. 95 

said writs. And to examine and correct all and all manner 
of errors of the justices and magistrates of this province, in 
their judgments, process and proceedings in the said courts, 
as well as in all pleas of the Crown, as in all pleas real, personal 
and mixed; and thereupon to reverse or affirm the said judg- 
rnents, as the lav/ doth or shall direct. And also to examine, 
correct and punish the contempts, omissions and neglects, favors, 
corruptions and defaults, of all or any of the justices of the peace, 
sheriffs, coroners, clerks and other officers within the said respec- 
tive counties. And also shall award process for levying, as well 
of such fines, forfeitures and amercements, as shall be estreated 
into the said supreme court, as of the fines, forfeitures and 
amercements, which shall be lost, taxed and set there, and not 
paid to the uses they are or shall be appropriated. 

"And generally shall minister justice to all persons, and exercise 
the jurisdictions and powers hereby granted concerning all and 
singular the premises according to law, as fully and amply, to all 
intents and purposes whatsoever, as the justices of the court of 
, King's Bench, common pleas and exchequer at Westminster, 
or any of them, may or can do. 

"Saving to all and every person and persons, his, her or their 
heirs, executors and administrators, their right of appeal from 
the final sentence, judgment or decree of any court within this 
province, to His Majesty in council, or to such court or courts, 
judge or judges, as by our Sovereign Lord the King, his heirs 
or successors, shall be appointed in Britain, to receive, hear and 
judge of appeals from His Majesty's plantations. 

"Provided, The person appealing shall, upon entering his 
appeal in the court where the sentence, judgment or decree shall 
be given in this province, pay all the costs before that time 
expended in the prosecution, or defending the said suit; and shall 
further enter into bond, with two good and sufficient securities in 
the sum of three hundred pounds, to the defendant in the appeal, 
conditioned to prosecute the said appeal with effect within the 
space of eighteen months after the entry of such appeal, and to 
satisfy the judgment of the court from which he appeals; and 
further, to pay all such costs and damages as shall be adjudged 
to him to pay, in case a sentence, judgment or decree, pass against 
the said appellant, or in case he, she or they fail to prosecute 
their appeal with effect. 

"And be it further enacted by the authority aforesaid. That 
the said judges of the supreme court shall have power and are 
hereby authorized and empowered, from time to time, to deliver 



96 EARLY COURTS OF PENNSYLVANIA. 

the gaols of all persons which now are or hereafter shall be com- 
mitted for treasons, murders, and such other crimes as (by the 
laws of this province) now are or hereafter shall be made capital 
or felonies of death as aforesaid. And for that end from time 
to time to issue forth such necessary precepts and process, and 
force obedience' thereto, as justices of assize, justices of oyer 
and terminer, and of gaol delivery, may or can do in the realm 
of Great Britain." 

We have referred to the 3hort-lived Act of August 27, 
1727. This act was almost a counterpart of the Act of 
1722, but was designed to deprive the supreme court 
of the power to institute original process. Its repeal 
was accomplished by John Moore, the king's collector 
of customs at Philadelphia, who strongly objected to it 
on the ground that actions involving the revenue would 
thenceforth have to be tried in the county courts. From 
the statements of Moore and Fitzwilliam, the surveyor 
general of the customs, it would appear that in 1724 
there arrived at Philadelphia the ship Fame purporting 
to carry emigrants from the Palatine, but really con- 
taining a cargo of East India goods from Holland and 
articles of European manufacture which the navigation 
laws required to be imported from England only. Moore 
seized the ship but it was forcibly taken out of his 
possession by a mob, towed down the river and most 
of the cargo unloaded. Then, it is stated. Sir William 
Keith made a fresh seizure in a collusive action brought 
in the county court and the ship was sold for a trifling 
sum. Moore acting by advice of Sir Philip Yorke, the 
attorney-general, brought actions in the supreme court 
of Pennsylvania against the parties concerned, where- 
upon Keith and his colleagues in the assembly procured 
the passage of the Act of 1727 depriving that court of 
original jurisdiction. This, said Fitzwilliam, would 
discourage prosecutions for breaches of the acts of trade. 

"For as the judges of those courts are men but of mean 
circumstances and as mean capacities, so are the juries more 



EARLY COURTS OF PENNSYLVANIA. 97 

apt to be biased in favor of those who transgress the law, the 
common people being generally of opinion that those who 
bring goods from foreign parts can afford them better penny- 
worths than others who import the like commodities from Great 
Britain where the duties and customs are high." 

Moore added that the magistrates were "all mer- 
chants."^ The proprietors addressed a counter petition 
to the council in favor of the act, stating that they were 
not concerned in the controversy between Keith and 
Moore but that the act had been passed after nine months 
careful consideration and v/as not intended to prejudice 
His Majesty's service, that so far as they were informed 
Moore was the first person to attempt to introduce 
the practice of bringing actions in the supreme court, 
and that it would prove a great hardship to the inhabit- 
ants living in remote settlements to compel them to 
attend court at Philadelphia and that the merchants 
were frequently gentlemen of the best fortune and 
substance as well as probity.^ The act was referred 
to Mr. Fane, who wrote an elaborate opinion in which 
he questioned whether original jurisdiction was vested 
in the supreme court by the Act of 1722 although there 
were some words that pointed that way. 

"It is true the judges of the Supreme Court in the case of Mr. 
Moore have thought fit to exercise a jurisdiction, but I see no 
great conclusion from thence, because courts of law are ever 
willing, upon the slightest pretenses, to extend their juris- 
diction."^ 

The commissioners for trade and plantations reported 
adversely to the act and it was accordingly disallowed.* 

1 IV Statutes at Large, 425, 430. 

2 IV Statutes at Large, 431. 

3 IV Statutes at Large, 443. 

*IV Statutes at Large, 421, 449; III Colonial Records, 446, 
November 23, 1731. The assembly stated that the aspersions 
on the inferior courts were false and scandalous. Votes of 
Assembly, Vol. Ill, 168, 169. 



98 EARLY COURTS OF PENNSYLVANIA. 

Whatever may have been the intention of the Act of 
1722, it would seem that the supreme court was chary 
of assuming original jurisdiction. Chief Justice Tilgh- 
/ man in Commonwealth v. Smith^ informs us that prior to 
/ 1786 the court had, certainly for a long time, exercised no 
original jurisdiction except in cases of fines and common 
recoveries, which, though actions in form, were in sub- 
stance no more than mere conveyances of record. 

Two acts amending the Act of 1722 were passed prior 
to the Revolution. By the first of these, the Act of 
September 29, 1759, the judges of the court of common 
pleas were appointed to hold the orphans' court, a duty 
which had for some time previously been assigned to 
the quarter sessions, and the judges of the latter court 
were not to sit in the common pleas, which was to consist 
of five persons. No exception was taken to these pro- 
visions, which were approved, but the proprietors 
strongly objected to another clause in the act which 
provided that the judges of the common pleas, as well 
as the justices of the supreme court, should hold their 
commissions quam diu se bene gesserint and be 
removable only on the address of the assembly. The 
committee of the council were strongly against this pro- 
vision, not only as limiting the charter rights of the 
proprietors, who were therein permitted to nominate 
judges without limitation, but as perpetuating in the 
seat of justice men of secondary capacity, except the 
chief justice. It was further stated that in the other 
colonies the judges held durante bene placita, and 
it was not expedient to make a change in Pennsylvania 
which would confer no real benefit upon the inhabitants 
and "excite a just jealousy in the other colonies by 
seeming to extend advantages to this proprietary 
government, which have been denied to those under 



1 4 Binney's Reports, 117 (1811). 



EARLY COURTS OF PENNSYLVANIA. 99 

his majesty's immediate care."^ The act was accord- 
ingly disapproved September 2, 1760. 

Another amendment to the Act of 1722 was adopted, 
by which the number of supreme judges was increased 
to four, and the removal of cases into the supreme court 
in suits involving less than fifty pounds, except in cases 
involving title to land, was prohibited under penalty, 
in the case of the plaintiff, of loss of costs and of the 
defendant of double costs. It was also provided that 
appeals to England should be taken only on demurrer 
to evidence, bill of exceptions or writ of error. This 
act was allowed to become a law.^ 

It will be noticed that no jurisdiction is conferred 
upon the courts in matters of divorce. We have seen 
that in the Dutch period divorce was recognized in 
accordance with the doctrines of the Reformation, but 
after the English conquest the subject is hardly recog- 
nized as belonging to the domain of ordinary courts. 
In an amendment to the Duke of York's Laws of 1665 
it is provided that in cases of adultery the proceedings 
shall be "according to the laws of England which is by 
divorce,"^ but this does not say more than that a divorce 
a mensa et thoro, or judicial separation, would be recog- 
nized and Chancellor Kent is authority for the statement 
that during the colonial period no divorce took place 
in the colony of New York."^ In Pennsylvania the 
"great law" of 1682 in defining and punishing adultery 
provided that the guilty parties should "be liable to a 
Bill of Divorcement, if required by the grieved husband 
or wife" within a year after conviction."^ This was 



1 V Statutes at Large, 462, 722. 

2 May 20, 1767, VII Statutes at Large, 107. 
^ Charter and Laws of Pennsylvania, 63. 

* Kent's Commentaries, Vol. II, 97. 

^ Charter and Laws of Pennsylvania, 109. 



100 EARLY COURTS OF PENNSYLVANIA. 

reenacted in 1693^ and again in 1700^ with a more 
severe punishment for the crime. The last act was 
repealed by the Crown in 1705 upon the advice of the 
attorney general, Sir Edward Northey, who pointed 
out that "by this law for adultery a bill of divorce is 
allowed to the injured husband and wife, but the divorce 
is not explained, whether to be a vinculo matrimoni 
or only from bed and board, as the ecclesiastical laws 
of England allow, which I think ought to be ascer- 
tained."^ The defect was remedied by the Act of 
January 12, 1705-6,* which, in adultery, gave the 
injured party a divorce from bed and board, to be 
granted on bill by the governor or lieutenant-governor 
for the time being. This act was allowed to become a 
law. If the governor exercised this power it has escaped 
notice in the minutes of the council, but among the 
records of the court of chancery is a bill filed by a wife 
against her husband, praying for a writ of ne exeat against 
the defendant, until he should enter security to answer 
a bill for divorce.^ The writ was allowed but there is 
no entry of the final result of the divorce proceeding. 
It would have been strange, however, if the practice 
of obtaining a divorce by act of parliament, which was 
the only means by which the marriage bond could be 
dissolved in England in the eighteenth century,® had 
not been imitated in America, and, accordingly, we 



^ Charter and Laws of Pennsylvania, 194. 

2 Act of November 27, 1700, II Statutes at Large, 5. 

3 II Statutes at Large, 490. 

* II Statutes at Large, 180. By another act, of the same date, 
a divorce from bed and board was allowed to the first husband 
or wife of a bigamist. II Statutes at Large, 181. 

^ Rawle's Equity in Pennsylvania, Appendix, 25. 

^ "As a matter of fact, for the century and a half during which 
the practice prevailed perhaps not more than two hundred 
such separations were granted." Howard, Matrimonial Insti- 
tutions, Vol. II, 106. 



EARLY COURTS OF PENNSYLVANIA. 101 

find a bill passed February 18, 1769/ to dissolve the 
marriage between Curtis Grubb and Ann Few, his wife, 
and to enable him to marry again. Before approving 
this bill Governor John Penn sent to the assembly for 
the papers and proofs in support of the charges of 
adultery and bigamy made against the wife and suggested 
several amendments to the act.^ When the laws of 
1769 were submitted to the privy council, this act was 
referred by the committee for plantation affairs to Mr. 
Jackson, their counsel, who gave it as his opinion that 
the assembly had properly exercised a power which 
he was inclined to think they ought to be entrusted 
with, but, as the matter was very important, he advised 
that the attorney and solicitor- general be consulted.^ 
The point was so referred but no reply was received and 
the act became a law by lapse of time. The same 
question arose three years later when a bill was passed 
to divorce George Keehmle from his wife Elizabeth, 
who had been tried, in the supreme court, for adultery 
and convicted.* This time the committee on plantations 
advised that the king should refuse to confirm the act 
and should give ''such directions as shall have the effect 
to prevent the laws passed by the legislature of Pennsyl- 
vania, becoming a precedent and example for the 
exercise of like powers in other colonies." The act 
was accordingly declared void April 27, 1773,^ and in the 
same year a circular letter sent to the provincial governors 
commanding them not to give their assent to any bill 
"for the divorce of persons joined together in Holy 



1 VII Statutes at Large, 263. 

2 IX Colonial Records, 564, 566, 567, 580. 

3 VII Statutes at Large, 626. 

* VIII Statutes at Large, 243. 

^VIII Statutes at Large, 597, 600; Votes of Assembly of 
Pennsylvania, Vol. VI, 485, 488; X Colonial Records, 104. 



102 EARLY COURTS OF PENNSYLVANIA. 

Marriage."^ Prior to this the governor had refused 
his consent to a bill "making void the pretended mar- 
riage of Rebecca Vanakin with a certain John Martin. "^ 
No more divorce acts were passed until 1779 when 
James Martin was divorced from his wife Elizabeth, 
who had eloped with Sergeant Havell of the British 
Army "taking with her the said James Martin's effects, 
and leaving him to pay sundry debts of her contracting."^ 
From this time the number of special acts granting 
divorces increases. Ten were granted prior to the Act 
of September 19, 1785,* which conferred jurisdiction 
in divorce upon the supreme court and authorized 
absolute divorces in the cases of impotency at time of 
contract, bigamy, adultery and willful and malicious 
desertion for four years, as well as divorces from bed 
and board in other cases, an extremely liberal law for 
that day but soon superseded by legislation even more 
liberal. Private divorce acts, however, were passed by 
the legislature until forbidden by the constitution of 
1874.5 

An examination of the judges' commissions, in the 
archives, will show that the practice, prior to the Revo- 
lution, was to issue to the justices of the peace of each 
county a joint commission authorizing three or more 
of them to hold the quarter sessions, and likewise 
assigning any three or more of them to hold the court 
of common pleas. Separate commissions were issued 

^ November 24, 1773, O'Callahan's Documents relative to 
the Colonial History of New York, Vol. VIII, 402; New Jersey 
Archives, Vol. X, 411, 412. 

2 :: Colonial Records, 40, 53, 54. 

3 IX Statutes at Large, 433. 

4 XII Statutes at Large, 94. 

^ Eighteen private acts were passed in 1873. For the present 
law see the Act of March 13, 1815, 6 Smith's Laws of Pennsyl- 
vania, 286; Pepper & Lewis's Digest of Decisions, Vol. V, 
col. 7075; Stewart's Purdon's Digest, Vol. I, 1230. 



EARLY COURTS OF PENNSYLVANIA. 103 

to the chief justice and justices of the supreme court, 
and a joint commission of oyer and terminer.^ In 1717 
Governor Keith questioned the propriety of issuing 
commissions to the judges in the name of the proprietor 
instead of the king, since, even if the charter could be 
so construed, the king could not grant away any part 
of his prerogative inseparable from the sovereignty. 
The council replied that the difficulty arose from not 
distinguishing fully "between the state of England and 
that of new colonies made without the Verge of the 
ancient Laws of that kingdom." 

"That these American Lands being new Discoveries of Tracts 
,long settled by their native inhabitants the Indians who were 
under no subjection to nor had any knowledge of the laws 
of England; those laws, whenever they come to reach these 
Lands, must by some Regular method be extended to them, 
for they cannot be supposed of their own nature to accompany 
the people into these Tracts in America, any more than they 
would the same persons going into any other foreign part of 
the world." 

And further, that the royal prerogative as exercised 
in England could "no more be understood to accompany 
the sovereignty than all the other laws can."^ Keith 
yielded to the opinion of the council. After the death 
of Penn, judicial commissions were issued in the name 
of the king and attested by the governor, by authority 
of the proprietor, while minor officials were commissioned 
in the name of the proprietors alone. ^ 

In these commissions the time for which they are to 
run is not stated. The commission of the peace seems 
to have been filled up and renewed at first yearly, but 
later at longer intervals of irregular length, and it was 



^ See examples in VIII Pennsylvania Archives (3d Series), 23. 

2 III Colonial Records, 23, February 14, 1717. 

3 Charter and Laws of Pennsylvania, 382, 385; VIII and IX 
Pennsylvania Archives (3d Series), passim. ^ 



104 EARLY COURTS OF PENNSYLVANIA. 

the custom for governors to renew the commissions at, 
or soon after, their accession to the government.^ At 
these various renewals it may be presumed that un- 
desirable members were dropped. The justices of the 
supreme court also were recommissioned from time 
to time, but would seem usually to have held their 
offices until death or resignation. The real trouble seems 
to have been to persuade men of ability to fill the thank- 
less positions. The assembly neglected the matter of 
compensation, and on Penn's second visit he seems to 
have himself promised the chief justice one hundred 
pounds a year. In 1706 the salary of the chief justice 
is said to have been in arrears, and it was proposed that 
the assembly should be asked to make some provision 
for the judges, as it was unfair to throw this expense 
on the proprietor. Roger Mompesson, judge of vice 
admiralty, who was appointed to the office soon after- 
wards, accepted, "though the present encouragement 
be but very slender and no way inviting."^ The per- 
quisites of the court were the fees allowed by the fee bill. 
Those established by the Act of March 30, 1723,^ were 
four shillings for every allocatur signed, six shillings 
for every case brought into court by certiorari, taking 
bail two shillings, every judgment six shillings, every 
rule two shillings. As late as 1772 the salary of the 
chief justice of the supreme court was two hundred 



^ So, also, on the accession of a new sovereign, III Colonial 
Records, 298, September 1, 1727. Chronological lists of the 
judges of the supreme court and of the court of common pleas 
and the orphans' court of Philadelphia Count}^ will be found 
in John H. Martin's Bench & Bar of Philadelphia (1883). 
Another list, slightly different, will be found in IX Pennsylvania 
Archives (2d Series), 629. 

2 II Colonial Records, 247, April 17, 1706. 

3 III Statutes at Large, 369; same in Act of August 22, 1752; 
V Statutes at Large, 161. 



EARLY COURTS OF PENNSYLVANIA. 105 

pounds, and of the associate justices one hundred and 
fifty pounds.^ 

In the county courts the justices received trifling 
fees for various services, and the expenses of the sitting 
of the court were paid by the county. 

The Act of January 28, 1777,^ provided that one 
justice should be appointed to preside in the respective 
courts of common pleas, quarter sessions and orphans' 
court, but the honorary office of president of the court 
had existed from the earliest times and was applied 
to the first in the commission, or senior justice, the 
same person being, in many cases, for a long series of 
years first in the commission.^ The city of Philadelphia, 
under its charter, had a criminal court of its own, 
presided over by the city recorder, usually a lawyer, 
assisted by the aldermen. Those of the aldermen who 
were in the commission of the peace also sat in the 
county courts. 

By an Act of January 12, 1705,* a special court was 
established for the trial of negroes, consisting of two 
judges, specially commissioned by the governor, in the 
respective counties, assisted by six freemen of the 
county; the purpose being to obtain speedy trials and 
summary punishment for negro offenders, whose crimes 
excited some alarm in the province. This act was 
repealed in 1780. 

By an Act of May 28, 1715,^ the justices of the peace 
were • given jurisdiction to try, and finally determine 
all suits for debts and demands under forty shillings, 



1 X Colonial Records, 53, September 19, 1772. 

2 IX Statutes at Large, 29. 

^ Justice Moll is described as "president of the court at New- 
Castle." Records of Court at New Castle, 496; see, also, I 
Colonial Records, 18, 23, 3 mo. 1683. 

* II Statutes at Large, 233. 

'Ill Statutes at Large, 63. 



106 EARLY COURTS OF PENNSYLVANIA. 

and issue executions on their judgments, through the 
constable, by levy on the goods or attachment of the 
body of the defendant. The court of the city of Phila- 
delphia for the collection of small debts was abolished, 
and it was further enacted that no court of the province 
should have jurisdiction of debts under said amount, 
but that 'the act should be the exclusive remedy. Debts 
for rents or contracts relating to real estate were ex- 
cluded from this jurisdiction. The act was allowed 
to become a law, and is the foundation of the present 
civil jurisdiction of the justices of the peace as amplified 
by the Act of March 20, 1810,^ and subsequent acts. 

Briefly summarized, the administration of justice 
at the beginning of the Revolution was vested in the 
county courts of quarter sessions, common pleas and 
orphans' courts, presided over by justices of the peace, 
commissioned by the governor, none of whom, prior 
to the Revolution, appears to have been learned in the 
law. There was a supreme provincial court consisting 
at first of five, later of three and finally of four judges, 
of whom the chief justice was generally a lawyer or at 
least possessed of some legal experience. This court 
had a general appellate jurisdiction, and original criminal 
jurisdiction in capital cases. The original jurisdiction 
in civil cases does not seem to have been well defined 
but was assumed to exist in cases of fines and common 
recoveries. Where a case appealed involved issues of 
fact, such issues were tried in the supreme court before 
a jury. The court sat twice a year in Philadelphia and 
went on circuit to the other counties when required. 
From this court an appeal could, in certain cases, be 
taken to the king in council. There were special courts, 
such as that of the corporation of Philadelphia and that 
for the trial of negroes, and, finally, the court of vice 
admiralty under the Crown. 

1 P. L. 208. 



EARLY COURTS OF PENNSYLVANIA. 107 

As for the judges of the respective courts, to mention 
them all would be to give a biographical history of the 
province. Nearly every man of distinction at that day 
filled at some time a place on the bench. It was, in 
the lower magistracy, the stepping stone to higher 
office, and, with the higher officials, part of the burden 
and duty of government. It is interesting to note that 
Benjamin Franklin sat for a short time in the common 
pleas, but was wise enough to see that the position 
required a special knowledge that he did not possess 
and was not sufficiently interested to acquire.^ Except 
the recorders of Philadelphia, few, if any, of the judges 
of the lower courts had any legal training, beyond such 
as they acquired in the exercise of their office. In the 
supreme court, David Lloyd, chief justice from 1717 to 
1731, had a reputation in his day as an able lawyer, 
but in history he is chiefly conspicuous as the spokes- 
man of the anti-proprietary party in the assembly, and, 
as we have seen, was actively concerned in the develop- 
ment of the judicial system of the province.^ James 
Logan, his one-time enemy, who succeeded him in the 
office, was the most conspicuous figure in the province 
in his time, excepting only Penn himself. He was not 
a lawyer, but was talented and well educated, and had 
sat in the quarter sessions and common pleas of Phila- 
delphia for years. John Kinsey, who became chief 
justice in 1743, was a lawyer in extensive practice, and 
the governor considered it a matter of congratulation 
that one of the legal profession had consented to take 

1 Benjamin Franklin's Autobiography, chapter ix. A bill 
of exceptions signed by Franklin with the other judges of the 
common pleas is printed in Appendix B, Vol. I, of the Forum, 
by David Paul Brown. 

2 David Lloyd was bom in 1656 in Montgomery County, 
North Wales, and was appointed attorney-general by Penn in 
1686. At the time of his death in 1731 he resided at Chester. 
He left no descendants. 



108 EARLY COURTS OF PENNSYLVANIA. 

the position. At the time when Dallas's Reports begin, 
William Allen presided. He was said to be the richest 
citizen in the province and was a son-in-law of the dis- 
tinguished lawyer, Andrew Hamilton. Educated in 
London, he had filled various offices, including those of 
mayor, recorder of Philadelphia and judge of the com- 
mon pleks, and was also one of the original trustees 
of the College of Philadelphia.^ In 1774 Benjamin Chew, 
who had studied law in Hamilton's office and also in 
the Middle Temple, was appointed chief justice. During 
the Revolution he was displaced, but after spending 
fourteen years in retirement was made president of the 
high court of errors and appeals in 1791. 

In the early days of the settlement there was no 
public building in the capital where court could be held, 
and, as time went on, the inconvenience of this state 
of affairs became manifest. In 1705, the grand jury 
of Philadelphia County recommended the levy of a tax 
to build a courthouse "where the bell now stands."^ 
This was at Second and Market streets where the town 
bell, erected on a mast, gave notice to the citizens of 
important gatherings. Penn had intended that the 
public offices should be placed in Centre square, but 
that spot was then far distant from the centre of popu- 
lation. There was some dispute between the city and 
county as to the division of the expense of erecting the 
proposed building and the matter was before the council 
in 1708, when Justices Growdon and Pidgeon stated that 
"it is not only scandalous to both town and county, 
but even to the whole Govmt. that while every other 
county has their County house, Here in the Capital town 



1 It is said that Chief Justice Allen refused to issue Writs 
of Assistance to the customs officers at the time of the memorable 
agitation on that subject. Quincy's Reports (Mass.), 509. 

2 Watson's Annals of Philadelphia (1850), Vol. I, 350; Sharp & 
Westcott's History of Philadelphia, Vol. II, 857, Vol. Ill, 
page 1819. 



EARLY COURTS OF PENNSYLVANIA. 109 

of the Govmt. the Magistrates are obliged to hold court 
in an ale house." ^ It was finally agreed that if the 
county would build some necessary bridges, the town 
would build the courthouse. Accordingly a small, 
quaint two-story structure was built at Second and 
Market streets, of which the municipality was then very 
proud and which served all the purposes of a town hall. 
Here the assembly met until the erection of the state- 
house and here elections were held, while from the 
balcony the inaugural addresses of the governors were 
delivered.^ Near by were the stocks and the pillory. 
Besides the city and county courts, the supreme court 
also sat there twice a year. When the statehouse was 
finished the supreme court moved to that building. In 
1787 the erection of a new courthouse was commenced 
at Sixth and Chestnut streets, upon land devoted to 
that use by the assembly in 1762,^ but while Phila- 
delphia was the capital, the building was used by the 
Federal Government. When the capital was removed 
to Washington the courts took possession of the build- 
ing long intended for their use. The old courthouse 
was ruthlessly torn down in 1837, an extraordinary act 
of vandalism even for those times. 

In 1698 a volume was printed in London, entitled, "A 
historical and geographical account of the province of 
Pennsylvania and of the West New Jersey in America, 
etc., by Gabriel Thomas who resided there about fifteen 
years." Regarding two of the learned professions he 
writes: "Of lawyers and physicians I shall say nothing. 



^ II Colonial Records, 425, April 5, 1708. The building was 
finished in 1710. 

^ The Pennsylvania Gazette of December 14, 1769, states 
that Governor John Penn's commission was read from the 
Court House in the presence of a concourse of people. An 
election riot took place on the staircase leading to the balcony 
in 1742. 

3 Act of February 12, 1762; VI Statutes at Large, 177. 



110 EARLY COURTS OF PENNSYLVANIA. 

because the country is very peaceable and healthy; 
long may it continue so and never have occasion for the 
tongue of one and the pen of the other, both equally 
destructive to men's estates and lives; besides, forsooth, 
they hangman-like, have a license to murder and make 
mischief." Such views, so far, at least, as our pro- 
fession is concerned, were not uncommon among the early 
colonists. Many of them belonged to persecuted reli- 
gious sects whose experiences with the law in their former 
homes were not such as to inspire pleasant sentiments 
toward the courts or their officers. Few were drawn 
from that class of society which, through birth or edu- 
cation, could be expected to feel or display any interest 
in professional learning, while those few who might have 
done so, were enthusiasts, filled with Utopian theories of 
government, or utilitarians, who regarded the lawyer as an 
"unproductive consumer." Nor was there anything to 
tempt an ambitious barrister to desert Westminster Hall 
for a hut in the wilderness. The colonists were usually 
poor, their possessions half-cleared farms, commerce 
was controlled by the mother country, fees were neces- 
sarily small, and the only road to professional distinc- 
tion and wealth was through crown offices or successful 
land speculation. However, since courts without coun- 
sel are as Hamlet without Hamlet, there are evidences 
that even in the earliest days there were men willing 
to undertake the conduct of cases. 

The early records of the court of assizes of New York 
show unmistakably the activity of certain men w^ho 
appear in so many cases that they must have been 
regarded as regular practitioners.^ In the records of 



^ There are attorneys mentioned in the Records of the Court 
of New Amsterdam, Vol. I, 190. Peter Alrichs, writing to 
Governor Stuyvesant March 30, 1658, says: "I have also to 
pay the attorney Schelluyn for salary earned by him in a suit 
against Dirck Cornelissen Heunich." VII Pennsylvania Archives 
(2d Series), 528. 



EARLY COURTS OF PENNSYLVANIA. Ill 

the court of New Castle the following minute appears 
under date of November 7, 1676: — 

"Uppon the Petition of Thomas Spry desiering that hee might 
bee admitted to plead some Peoples cases in Court etc. the 
Worppll Court have granted him License So long as the Petitioner 
Behaves himself well and carrys himself answerable thereunto."^ 

Evidently something must have happened in 1677 
to disgust the governor with the ways of the law, for 
on May twenty-ninth of that year the governor and 
council "reso ved and ordered that pleading atturneys 
bee no Longer allow^ed to practice in ye Government 
but for ye depending Causes," which order was read 
in open court at Upland and New Castle.^ Prior to the 
receipt of this order at New Castle John Mathews peti- 
tioned to be admitted as an attorney. The record 
states : — 

"The Court did admit the Peticon^ as an attorney and was 
swome accordingly: You doe sware by the Everliving God that 
you will according to Lawe truely plead & manadge all cases 
wherein you shall bee Imployed by Yo^ Clyant that you will not 
exact in yo^ fees above what shall bee allowed by the Governo^ 
& Court That you will not in one and the same action take 
fees both of the Pl^ and def* That you will not take any apparent 
unjust case in hand, but in all Respects behave yo^selve as all 
Attorneys are obliged to by the Lawes of this governmt"^ 

Subsequently it was ordered that — 

"The Cryer of the Court is to have for every Attorney that 
shall be admitted & sworne in Court twelve Gilders or halfe 
a bever."'* 

^ Records of the Court of New Castle, 9. Spry was also a 
doctor. In the same year he got into trouble by assaulting 
Captain Collier with a cane while "overcome wth drinke" and 
was fined two hundred guilders by the court. Records of Court 
of New Castle, 103. 

^ Hazard's Annals of Pennsylvania, 438; Records of the Court 
of New Castle, 111; Records of Court at Upland, 82. 

3 Records of the Court of New Castle, 83. 

* Records of the Court of New Castle. 101. 



112 EARLY COURTS OF PENNSYLVANIA. 

The crier no longer gets a beaver, but there is still a 
fee to be paid on admission by those prisoners of hope 
who have satisfied the examiners. 

It was the dream of Penn that in his colony the laws 
should be so plain and the pleadings so simple that every 
person could plead his own cause, and it was so provided 
in his laws agreed upon in England and embodied in the 
Act of March 10, 1683. His paternalism, and the 
peace-loving tendencies of his more sincere followers, 
tended to discourage skilled advocacy. In 1685 and 
again in 1686 the council promulgated laws against 
lawyers' fees. That of 1686 is as follows: — 

"For the a Voyding of to frequent Clamours and manifest 
Inconveniences wch usually attend mercenary pleadings in 
Civill Causes, It is Enacted by ye authority aforesaid, that 
noe persons shall plead in any Civill Causes of another, in any 
Court whatsoever within this Province and Territories, before 
he be Solemnlye attested in open Court, that he neither directly 
or Indirectly hath in any wise taken or received, or will take or 
receive to his use or benefit, any reward whatsoever for his soe 
pleading, under ye penalty of 5 lb. if the Contrary be made 
appear."^ 

Neither of these acts, however, passed the assembly. 

It soon became evident that lawyers could not, or 
would not, be dispensed with, and in 1686 David Lloyd 
was dispatched by the proprietor to Pennsylvania with 
a commission to act as attorney-general of the province. 
The Acts of 1710 and 1715, for establishing the courts, 
had provisions for the admission of attorneys, as also 
the Act of May 22, 1722, which finally became a law, 
and which provided "that there may be a competent 

1 Charter and Laws, 507; I Colonial Records 123, 2, 2 mo. 
1686. This was not a new idea, as Massachusetts in 1641 and 
Virginia in 1645 had attempted by legislation to prevent attor- 
neys from pleading for remuneration. Baldwin on Constitu- 
tional Law in Two Centuries' Growth of American Law, 14; 
see also, II Connecticut Colonial Records, 59. 



EARLY COURTS OF PENNSYLVANIA. 113 

number of persons of an honest disposition and learned 
in the law, admitted by the justices of the said respective 
courts, to practise as attorneys there." In the Act of 
March 30, 1722-23, ^ for regulating official fees, the 
attorney's oath is prescribed in a form very similar to 
that used at the present day: "Thou shalt behave thyself 
in the office of attorney, within the court to the best of 
thy learning and ability, and with all good fidelity, as 
well to the court as to the client. Thou shalt use no 
falsehood, nor delay any person's cause for lucre or 
malice." 

Even before this a miniature bar had sprung up 
among those active in public affairs, among whom were 
Abraham Mann and John White, members of the 
assembly, and Patrick Robinson, clerk of the court, 
and afterwards a member of the provincial council. In 
1683 John White was appointed attorney-general to 
try a case against counterfeiters, and in 1685 Samuel 
Hersent was appointed to this office. The two men who 
were most active during the earliest period were David 
Lloyd and John Moore. The latter, w^ho had emigrated 
to Pennsylvania from South Carolina prior to 1696, was 
appointed advocate of the court of admiralty by Colonel 
Quarry, and was afterwards attorney- general. As the 
province grew and prospered others came in, and in the 
early part of the eighteenth century there was a consider- 
able influx of educated lawyers. The natural result was 
greater precision in the pleadings and closer adherence 
to English forms and practice. Robert Assheton, who 
filled the office of prothonotary from 1701 to 1727, as 
well as that of associate justice of the supreme court, 
was a trained lawyer; from his time the indictments were 
scientifically prepared, and in fact all the clerical work 
of the court offices improved. Nevertheless, the bar 

1 III Statutes at Large, 379. 



114 EARLY COURTS OF PENNSYLVANIA. 

must have been a small and select body, since there 
are recorded accusations of attempts to monopolize it. 
In 1708^ a petition was read in the council from one 
James Heaton — 

"representing that he had been sued in an Action of Trover and 
Conversion, in the County of Bucks, by J. Growdon, yt he had 
procured a writt of Error, by which the cause is to be brought 
before the Provincial Judges, in the said County, the 14th of 
this Instant; that in the meantime the said Jos. Growdon arrested 
him in Philadia. on the same account in an Action to which he 
must answer at the County Court in Philadia., on the 15th 
Instant, wch. two several Courts coming so near together layes 
the Petitr. under great hardships; he also represents that his 
antagonist himself is Judge of the Provincial Court, and further 
that he has retained all the Lawyers in the County (that have 
leave to plead,) against him; Whereupon he prays that the Govr. 
would be pleased to appoint an Impartial Judge to hear his 
cause, and would either assign him Counsel, or so ascertain the 
Provincial Court, that if he be at the Charge of procuring some 
from New York, he may not be disappointed. 

"Upon wch. Jos. Growdon himself being present, answer'd that 
his action in Bucks, and that in this County, are different; that 
he never retained more than one Counsell, viz; John Moore, 
in this cause, but that he not being able to attend, procured 
another to act for him; by which means without any design of 
his, two became Concerned in it, that it being impracticable 
that a man should Judge in his own cause: that part of the 
Petition was altogether needless." 

It was resolved that the petitioner be left to find his 
own counsel, and Yeates, the second judge, was assigned 
to hear the case. 

In the following year Francis Daniel Pastorius and 
Johannes Jawert petitioned the council against pro- 
ceedings in ejectment brought by one Sprogel to recover 
the estates of the Frankfort Company, an association 
of German purchasers of land, averring that Sprogel 
as part of his "abominable plot did fee all the known 

1 II Colonial Records, 423, April 2, 1708. 



EARLY COURTS OF PENNSYLVANIA. 115 

attorneys or lawyers of this province either to speak for 
him or to be silent in court, in order to deprive the peti- 
tioners of all advice in law."^ Upon examining the peti- 
tioners in the council David Lloyd was declared "the 
principal agent and contriver of the whole," and steps 
were taken to protect the purchasers. The case is 
reported in Pennypacker's Colonial Cases with an account 
by Pastorius of the whole curious transaction.^ 

In Lyle v. Richards^ Chief Justice Tilghman remarks 
that there were few lawyers of eminence in the province 
prior to Tench Francis, although there were never 
wanting strong minds well able to conduct the business 
of the courts, and the fact that the leading lawyers of 
the following generation received their training in the 
Inns of Court led them perhaps to look down on their 
predecessors, some of whom were in extensive practice 
that included the neighboring colonies. Disparaging 
remarks by contemporaries are not infrequent. Secre- 
tary Richard Peters, writing in 1749 to the proprietors 
says of the bar in general: "All of whom except Francis 
and Moland are persons of no knowledge, and, I had 
almost said, of no principle."^ One name, however, 
stands at the head of the early bar, that of the brilliant 
Andrew Hamilton. The history of Hamilton is worth 



1 II Colonial Records, 447, March 1, 1708-9. 

2 Heather v. Frankfort Co., Pennypacker's Colonial Cases, 142; 
II Colonial Records, 447, March 1, 1708-9. That the "corner- 
ing" of the bar was not a new experiment would appear from 
an incident mentioned by Barrington in his "Observations 

on the Statutes," page 294n. "There is also a petition of 

Robert Pickerell, exhibited to the king in parliament the second 
year of Richard the Second; by which he complains that 
Alice Ferrers had retained all the advocates in Westminster 
Hall, so that he could have no advice; 'si il ne donneroit si 
grande summe d'or, quil ne poit attainder.' 

3 9 Sergeant & Rawle's Reports, 322 (1823). 

* Watson's Annals of Philadelphia (1850), Vol. I, 316. 



116 EARLY COURTS OF PENNSYLVANIA. 

noting, as he is the only American lawyer of his genera- 
tion that enjoyed an international reputation. A native 
of Scotland, he first taught school and then practiced 
law in Maryland, from whence he removed to Phila- 
delphia, about 1715, having been retained to represent 
the proprietary interests. In 1717 he became attorney- 
general and was active in the litigation over the Mary- 
land boundary. He also appeared in the high court of 
chancery for the young proprietors, in the contest over 
Penn's will,^ having been called to the English bar in 
1712. The most interesting personal episode in his 
career was the part he took in the erection of Independ- 
ence Hall, which was built from plans prepared by him 
and under his personal supervision. To the legal pro- 
fession he is best known for his brilliant and successful 
defense of the printer, Peter Zenger, tried for seditious 
libel, a case of real historical importance as well as 
contemporary interest. In this case, tried in the supreme 
court of New York in 1735, Hamilton, after the court had 
refused his offer to prove the truth of the statements 
alleged to be libelous, carried the jury against the 
instructions of the court and obtained the defendant's 
acquittal by a bold address in which the liberty of the 
press was asserted with unprecedented vigor. The 
doctrines which he advanced, regarded as unsound at 
the time, have since become indelibly impressed upon 
English and American law, and the trial deserves careful 
reading on account of the light that it throws on con- 
temporary political conditions and the effect that it 
had on the law of libel. ^ On the other hand, the 



^ VII Pennsylvania Archives (2d Series), 94. See sketch of his 
life in Vol. I, Lewis's Great American Lawyers (1907), 1. 

2 Howell's State Trials, Vol. 17, 575. In Pennsylvania the 
quarter sessions of Philadelphia had in 1692 allowed the question 
of the seditious character of a publication to go to the jury. 
Proprietor v. Bradford, Pennypacker's Colonial Cases, 117. 



EARLY COURTS OF PENNSYLVANIA. 117 

part played by Hamilton in the suppression of the 
court of chancery shows a willingness to sacrifice the 
science of jurisprudence to the exigencies of politics, 
characteristic of his time, but not in keeping with the 
best professional traditions. Tench Francis, the next 
bar leader of distinction, enjoyed a greater reputation 
with his successors in the post- Revolutionary period, and 
is praised by those whose learning entitled them to speak 
with authority.^ 

As the century advanced it became the general custom, 
for those who could afford it, to send their sons to be 
educated in the law at the Inns of Court. This was more 
prevalent in the Southern and Middle than in the New 
England colonies. From 1760 to the end of the Revo- 
lution there were more than one hundred American 
students of law in London, of whom forty-seven were 
from South Carolina, twenty-one from Virginia, sixteen 
from Maryland, eleven from Pennsylvania, five from 
New York and the rest from the other colonies, no other 
colony than those named having more than two 
students.^ Many of these men attained greax distinc- 
tion in professional and public life. Among those from 
Pennsylvania were Chief Justices Benjamin Chew, 
Thomas McKean, Edward Shippen and William Tilgh- 
man; Justice Jasper Yeates; Presidents of the Supreme 
Executive Council, Joseph Reed and John Dickinson; as 
well as such distinguished lawyers and citizens as 
Nicholas Wain, Edward and Richard Tilghman, William 
Rawle, Jared Ingersoll and Peter Markoe. It is not 
to be supposed that the education afforded by the Inns 
of Court corresponded to that given in a modern law 
school. Everything depended on the diligence of the 

^ It is a curious fact that a number of the bar leaders came 
from Maryland to Pennsylvania — Andrew Hamilton, Tench 
Francis, Benjamin Chew and the Tilghmans. 

2 Life and Times of John Dickinson, 28. 



118 EARLY COURTS OF PENNSYLVANIA. 

student himself, and admission as a barrister came in 
due course after eating the required number of dinners 
regularly during the appointed terms. But the atmos- 
phere and associations were conducive to study, while 
inspiration was to be drawn from the courts at West- 
minster, where the student attended and took notes of 
the arguments and decisions. Such notebooks were, in 
those days of scanty reporting, the treasured possessions 
of lawyer and judge and carefully consulted in the 
preparation of important arguments and decisions. In 
Clayton v. Clayton,'^ the manuscript notes of one of these 
students were cited in the supreme court of Pennsyl- 
vania. The case was one involving the question as to 
whether certain devisees under a will took an estate 
in fee or for life, there being no words of inheritance, 
but a direction to divide. Mansfield's decision in Wig- 
fall V. Brydon,^ was cited in favor of a fee. It being 
difficult to reconcile this decision with other authorities, 
the case was explained as turning on a direction to sell 
and divide, which appeared from the manuscript notes 
of the case of Goodright v. Patch, decided in the King's 
Bench, June 20, 1773, taken by Edward Tilghman while 
a student at law. So, too, in the political capital of the 
kingdom, the student studied the conflicting doctrines 
of the Tory and the Whig and prepared his mind for 
the momentous changes about to occur in his home 
across the sea. 

Those who could not go abroad for a legal education 
served a clerkship in the office of a practitioner in the 
courts. Just what were the qualifications for admis- 
sion do not seem to be recorded. At the earliest period 
sufficient assurance seems to have been all that was 
required, but, as the legal fraternity became better 



1 3 Binney's Reports, 476 (1811). 

2 3 Burrough's Reports, 1895 (1766). 



EARLY COURTS OF PENNSYLVANIA. 119 

organized, it may be presumed that the courts gave 
more consideration to the fitness of applicants. In 
1759 the supreme court made an order — , 

"That for the future no persons be admitted attorneys or 
council of this court without being previously examined as to 
their qualifications to practice, nor without having taken the 
oaths or affirmations of allegiance to his Majesty and sub- 
scribed the usual Declaration."^ 

At September term, 1760, Mr. Chew and Mr. Ross 
were appointed to examine an applicant and at April 
term, 1761, Francis Hopkinson was examined by Mr. 
Ross and Mr. Dickinson. Later admissions do not 
recite an examination, and, perhaps, this duty was dele- 
gated to the local bar, but the fact that there are no 
common pleas dockets for Philadelphia County on file 
prior to the Revolution renders the subject obscure. 
From the few minute books of the Philadelphia common 
pleas that have escaped destruction we find that by 
1790 it was the established practice for a member of 
the bar to move in open court for the admission of the 
candidate. The court would then appoint a special 
committee of three members of the bar to conduct the 
examination, and, if the result was favorable to the 
applicant, he was admitted and sworn. ^ 

Prior to the Revolution the path of the law student 
was made easier by the publication of Blackst one's 
Commentaries, a work that was said by Edmund Burke 
to have had a larger sale in America than in England, a 
statement that would seem to be justified, for hardly 
had the first complete edition appeared in England 
before an American edition was printed at Philadelphia 
(1771) of which about fourteen hundred copies were 

^ April Term, 1759, Supreme Court Docket No. 3, page 83. 
2 Minute Book, Court of Common Pleas, Philadelphia County, 
March Term, 1790. 



120 EARLY COURTS OF PENNSYLVANIA. 

subscribed for in advance, and this although one thous- 
and copies of the EngHsh edition had been imported 
and sold in America.^ The subscription list to the local 
edition is headed by seven colonial governors and lieuten- 
ant-governors, including Richard Penn of Pennsylvania 
and AVilliam Franklin of New Jersey. The alphabetical 
list, headed by "John Adams, Esq., Barrister at Law, 
Boston," includes many distinguished names, while of 
the local subscribers, many were from the interior parts 
of the state; John Creigh, bookseller of Carlisle, alone 
subscribing for forty-five sets. It is hardly possible to 
overestimate Blackstone's influence upon American 
private law. His Commentaries became at once the 
vade mecMm of the lay judge and the pioneer lawyer, in 
regions where libraries were unknown. The work in 
fact long stood for the common law itself in many 
communities, but it may be questioned whether the 
Commentaries were not, for a period, detrimental to 
legal scholarship, whether their flowing sentences did 
not carry the superficial student too easily over the 
submerged rocks of the common law, whether learned 
jurists have not wasted time in the discussion and 
criticism of Blackstone's theories and errors that might 
have been better spent in a re xamination of his 
sources. 

As the Revolution approaches we find an able group 
leading the bar, Moland, Chew, Ross, Wain, Tilghman, 
Galloway and Dickinson. Time was no object to the 
courts in those peaceful and slumberous days. In a 
manuscript book of reports giving some cases of that 
time the reporter says, in noting Haldane v. Duffield, 
April Term, 1768, "The remainder of Mr. Chew's argu- 
ment I did not hear nor did I wait Mr. Dickinson's and 
Mr. Tilghman's conclusion, this case having continued 

^ Hammond's Blackstone's Commentaries, Preface, page viii. 



EARLY COURTS OF PENNSYLVANIA. 121 

twelve hours." ^ In 1774 Chew succeeded Allen as chief 
justice,^ and in September of that year hospitably enter- 
tained the members of the Continental Congress then 
assembled in Philadelphia. Washington and John Adams 
both mention dining with him on the twenty-second of 
that month. Adams writes in his diary: — 

"Dined with Mr. Chew Chief Justice of the Province with all 
the gentlemen from Virginia, Dr. Shippen, Mr. Tilghman and 
many others. We were shown into a grand entry and staircase 
and into an elegant and magnificent chamber until dinner. 
About 4 o'clock we were called down to dinner. The furniture 
was all rich. Turtle and every other thing, flummery, jellies, 
sweetmeats, of 20 sorts, trifles, whipped sillabubs, floating 
islands, fools, &ct., and then a dessert of fruits, raisins, almonds, 
pears, peaches. Wines most excellent and admirable. I drank 
Madeira at a great rate, & found no inconvenience in it."^ 

The stately mansion of the chief justice yet stands, 
the fine old colonial hospitality a treasured memory. 
The smoke and dust of fratricidal war darkened it, its 
walls were battered with shot and its floor stained with 
blood; bench and bar were scattered, some to attain 
distinction in the camps and councils of the new nation, 
others to live obscurely through weary years of sus- 
picion or to fly from the country of their birth as 
attainted traitors, their lands forfeited and their names 
soon forgotten. 



^ Keith's Provincial Councillors, 328. 

2 X Pennsylvania Colonial Records, 173, April 29, 1774. 

2 Keith's Provincial Councillors, 329. 



CHAPTER III. 

The appearance docket of the supreme court for April 
Term, 1776, contains the following entry: — 

"Philadelphia, s. s. 

"At a Supream Court held at Philadelphia for the Province 
of Pennsylvania the tenth day of April in the sixteenth year 
of the reign of our Sovereign Lord George the third King of 
Great Britain France and Ireland, Defender of the Faith &c and 
in the year of our Lord one thousand seven hundred and seventy 
six: and continued by adjournment until — " 

Until when? Doomsday no doubt; for this was the 
last court held under our "Sovereign Lord George" and 
the date of continuance was never filled in. Independ- 
ence, however, was not welcomed in Pennsylvania with 
the same enthusiasm as in the New England states. At 
the beginning of the conflict the influential and conserva- 
tive element in the province while opposed to the meas- 
ures of parliament was exceedingly adverse to the idea 
of a separation from Great Britain. The grievances of 
the Pennsylvanians were not as great as those of the 
other colonists; they had a liberal charter and a satis- 
factory system of local government, while the proprie- 
tary family stood between them and the Crown to 
soften controversies and prevent conflicts of authority; 
many earnestly hoped for reconciliation and were carried 
on the tide of revolution sorely against their wills. To 
accelerate the movement and to get rid of the con- 
servatives, a bold, radical minority, with the moral 
support of congress, organized and carried through a 
revolution in the government of Pennsylvania. A con- 
vention called in July, 1776, and presided over by 
Franklin, drew up a new constitution, which, after 
considerable opposition, was declared to have been 



EARLY COURTS OF PENNSYLVANIA. 123 

adopted. Penn's charter was discarded, the proprie- 
tary government ceased to exist, the old officials and 
assembly retired and new men took their places. 

The Constitution of 1776 was not a satisfactory instru- 
ment and was discarded after a fourteen years' trial, 
but some of its features are worth noticing. The 
executive power was vested in a supreme executive 
council composed of twelve members, one from the 
city of Philadelphia and eleven from the respective 
counties. The term of office was three years, and the 
president and vice-president were chosen from the 
council by joint ballot of the assembly and council. 
The president and council were empowered to choose 
and commission all judges and other officers and fill 
vacancies in office. Every officer of the state was 
subject to impeachment by the assembly, the impeach- 
ments to be heard before the president and council. 
The principal judiciary clauses were as follows: — 

"Sec. 23. The judges of the supreme court of judicature 
shall have fixed salaries, be commissioned for seven years only, 
though capable of reappointment at the end of that term, but 
removable for misbehaviour at any time by the general assembly; 
they shall not be allowed to sit as members in the continental 
congress, executive council or general assembly, nor to hold any 
other office, civil or military, nor take or receive fees or per- 
quisites of any kind. 

"Sec. 25. Trials shallbeby jury as heretofore, and it is recom- 
mended to the legislature of this state to provide by law against 
every corruption or partiality in the choice, return or appoint- 
ment of juries. 

"Sec. 26. Courts of sessions, common pleas and orphans' courts 
shall be held quarterly in each city and county, and the legis- 
lature shall have power to establish all such other courts as they 
may judge for the good of the inhabitants of the state; all courts 
shall be open, and justice shall be impartially administered with- 
out corruption or unnecessar}^ delay: All their officers shall be 
paid an adequate but moderate compensation for their services, 
and if any officer shall take greater or other fees than the laws 
allow him, either directly or indirectly, it shall ever after dis- 
qualify him from holding any office in this state. 



124 EARLY COURTS OF PENNSYLVANIA. 

"Sec. 27. All prosecutions shall commence in the name and by 
the authority of the freemen of the commonwealth of Pennsyl- 
vania, and all indictments shall conclude with these words — 
against the peace and dignity of the same. The stile of all process 
hereafter in this state shall be The commonwealth of Pennsyl- 
vania.''^ 

The ofifice of justice of the peace was made elective, the 
voters of the respective districts to choose two, one of 
whom was to be commissioned by the president for the 
term of seven years. 

A peculiar feature of the constitution was the provi- 
sion for the election every seven years of a council of 
censors who were to meet and inquire whether the con- 
stitution had been preserved inviolate, whether the 
laws were duly executed, and, if there appeared any 
necessity to amend the constitution, to call a conven- 
tion for that purpose. While these changes were in 
progress and while most of the active citizens were 
engaged in war or political strife, the administration 
of justice was sadly neglected. 

By an act of January 28, 1777,^ passed for the purpose 
of putting into effect such and so much of the laws of 
the province as were necessary in the commonwealth, 
it was provided, that the courts of quarter sessions and 
gaol delivery, petty sessions, common pleas, orphans' 
courts, supreme court, courts of oyer and terminer and 
general gaol delivery should be held and kept in each 
respective county at the times and places appointed 
by law, with all the powers, authority and jurisdiction 
which by law such justices and judges theretofore had 
had and exercised and such as were given by the con- 
stitution. It was further provided that the president 
and council should appoint one justice in each county 

^ Proceedings of the Constitutional Conventions of Pennsyl- 
vania of 1776 and 1790, Gl. The equit}^ clause will be referred 
to later. 

2 IX Statutes at Large, 29. 



EARLY COURTS OF PENNSYLVANIA. 125 

to preside in the respective courts and in his absence 
the justices who should attend were to choose a presi- 
dent. All actions in the provincial courts were con- 
tinued in the same state as if the authority of such 
courts had never ceased. 

The chief justice of the new supreme court was Thomas 
McKean, a signer of the Declaration of Independence 
and one of the most active of the patriot party. The 
associate justices were William A. Atlee and John 
Evans. The suspension of the courts caused consider- 
able inconvenience and letters and petitions complain- 
ing of the prevailing conditions were presented to the 
council.^ In the counties the same trouble was had 
with regard to the justices, many of whom were away, 
or unwilling to act in the unsettled state of affairs; in 
some parts of the state the local committees of safety 
assumed judicial power and took cognizance of minor 
crimes. 

The first session of the common pleas, at Philadelphia, 
when the style of process was altered from king to com- 
monwealth, was held in September, 1777, when six 
attorneys were admitted to practice,^ but the British 
were already marching on Philadelphia, and before the 
end of the month the army of King George had expelled 
the new government. 

During the occupation of Philadelphia by General 
Howe, from September, 1777, to June, 1778, the seat 
of government was in Lancaster. With the return of 
the state officials to Philadelphia the various agencies 
of proscription became active. Many persons were 
declared traitors and their estates forfeited to the 



^VI Pennsylvania Archives (1st Series), 228, 245, 294; VII 
Pennsylvania Archives (1st Series), 72; IX Colonial Records, 
214, 260. 

2 Biography of William Lewis, Pennsylvania Magazine, Vol. 
XX, 30. 



126 EARLY COURTS OF PENNSYLVANIA. 

commonwealth.^ The most important cases tried before 
the newly organized supreme court were treason trials, 
among which those of Roberts and Carlisle, which are 
very briefly reported, aroused great popular interest.^ 
Roberts, a miller of Lower Merion Township, was accused 
of acting as a guide to Sir William Howe and of per- 
suading various persons to enlist in the British army. 
Carlisle was charged with having accepted a commission 
to keep watch over the gate of the city of Philadelphia, 
established by Howe to prevent the ingress and egress 
of persons not provided with passes. The accused were 
tried on the twenty-fifth and thirtieth of September, 
177S, found guilty and sentenced to be hanged. Earnest 
appeals for executive clemency were made on behalf 
of the prisoners by petitions, but the council was firm 
and both men were hanged. In these, as in most of the 
other treason trials, James Wilson appeared for the 
defendants and acquired such unpopularity through his 
faithful efforts in behalf of his clients that his house was 
attacked by a mob, which was driven off only after a 
fight that cost several persons their lives. 

The Revolution brought to an end the court of vice 
admiralty, of which Edward Shippen was judge, and it 
became necessary to create a tribunal to take its place. 
The Continental Congress advised the several legislatures 
to establish courts of admiralty and, accordingly, the 
assembly, on March 26, 1776, passed a resolution creating 
a court of admiralty to be held in the city of Phila- 
delphia to try cases of captured vessels brought into that 
port, with the right of appeal to congress or to such 
person or persons as they should appoint to hear appeals.^ 



1 X Colonial Records, 610, 745. 

2 Respuhlica v. Carlisle, 1 Dallas's Reports, 35 (1778); Rcspub- 
lica V. Roberts, 1 Dallas's Reports, 39 (1778); and see IX Colonial 
Records, 600, 613. 

3 Journal of Congress, Vol. 1, 260; VIII Statutes at Large, 519. 



I 



EARLY COURTS OF PENNSYLVANIA. 127 

For this last purpose a committee was appointed by 
congress, whose feeble and unsupported authority was 
openly defied by George Ross, the Pennsylvania judge of 
admiralty, in the case of the "Active," giving rise to a 
memorable controversy carried on in the courts long 
after the adoption of the constitution of the United 
States, and nearly resulting in an armed conflict between 
the federal and state authorities. This case, or rather 
series of cases, pointedly illustrates the growth of the 
federal power, the decree of the helpless commissioners 
of admiralty of the Continental Congress, long flouted by 
the state judges, prevailing, after many years, by virtue 
of a judgment of the supreme court of the United States, 
to whose authority the state officials, after calling out 
the militia to resist the marshal, yielded a sullen obedi- 
ence.^ 

Francis Hopkinson, the distinguished writer, who 
succeeded Ross in 1779, was the first state judge to 
undergo the unpleasant experience of an impeachment 
by the assembly. This proceeding, which took place 
in December, 1780, w^as the result of a complaint by the 
judge against Mat hew Clarkson, the marshal of the 
court, which resulted in his dismissal. Clarkson in 
revenge made charges against the judge before the 
assembly, which voted for his impeachment « The court 
consisted of President Reed and the council. Smith and 
Galbraith managed for the house with Attorney-General 
Bradford, while Judge Hopkinson was represented by 
James Wilson. The principal charges against the judge 
were that he had wrongfully issued a writ for the sale 
of the cargo of a ship, and that he had exacted illegal 

1 Ross V. Rittenhouse, 2 Dallas's Reports, 160 (1792); 01m- 
stead's Case, Brightly's Nisi Prius Reports, 9 (1809); United 
States V. Peters, 5 Cranch (U. S.) 115 (1809); Trial of General 
Bright; Federal Courts before the Constitution, 131 United 
States Reports, appendix at page xxix. 



128 EARLY COURTS OF PENNSYLVANIA. 

fees in a prize case. The judgment of the council, as 
pronounced by the president, was an acquittal upon all 
the charges, although it seemed to the council that the 
fees, which were charged according to the recognized 
practice of the court, were excessive.^ Upon the adop- 
tion of the constitution of the United States admiralty 
jurisdiction passed to the federal district courts and 
Judge Hopkinson was appointed the first district judge 
for Pennsylvania under the Act of Congress of Septem- 
ber 14, 1789. 

The necessity for a court of last resort to take the 
place of the privy council of Great Britain was met by 
the creation of the High Court of Errors and Appeals, 
under the act of February 28, 1780,^ to hear appeals 
from the supreme court, the register's courts and the 
court of admiralty. 

This act, after reciting that the laws of the late 
province gave a very precarious, difficult and expensive 
remedy to parties injured by erroneous judgments, by 
appeal to the king in council, and that as "the good 
people of this commonwealth, by their happy deliver- 
ance from their late dependent condition, and by becom- 
ing free and sovereign are released from this badge of 
slavery and have acquired the transcendent benefit of 
having justice administered to them at home and at 
moderate costs and charges," enacted that a court of 
error should be established composed of the president 
of the supreme executive council, the judges of the 
supreme court, the judge of the admiralty, together with 
three persons of known integrity and abilit}'^ commis- 
sioned for seven years, any four or more of them to 
constitute a quorum. The court in this form had but a 
brief existence, its composition being materially changed 

1 Pennsylvania State Trial (Hogan, 1794), 3; XII Colonial 
Records, 584, December 26, 1780. 

2 X Statutes at Large, 52. 



EARLY COURTS OF PENNSYLVANIA. 129 

by the Act of April 13, 1791.^ Of the presidents of the 
council, Reed and Dickinson were leading lawyers and 
Dickinson rendered at least one very able decision in 
the admiralty case of Talbot v. Three Brigs.^ Benjamin 
Franklin, although he had once sat for a brief period 
in the common pleas, was wise enough to know that 
the administration of law required a special education, 
at least there is no reported opinion by him while presi- 
dent. Of the extra members of the court, Edward 
Shippen, judge of vice admiralty under the Crown, 
subsequently became chief justice of the supreme court ; 
Francis Hopkinson has been mentioned and Henry 
Wynkoop was president judge of Bucks County. 

That the Constitution of 1776 was not working 
smoothly was the opinion of a majority of the council 
of censors which met in 1783 to consider whether the 
constitution was being observed and whether it needed 
amendment. The committee on defects reported that 
the commissioning of the judges of the supreme court 
for seven years only was a material defect, because it 
rendered the tenure of judges dependent on the will of 
the council, while the committee on abuses reported 
that the section requiring fixed salaries for the judiciary 
had not been complied with as it ought and that perma- 
nent salaries should without delay be established for the 
judges during their continuance in office.^ The findings 
of the censors on these and other points were to bear 
fruit in the Constitution of 1790. 

In 1786 an addition was made to the jurisdiction of 
the supreme court, which hitherto had exercised no 
original jurisdiction in civil cases except in fines and 
common recoveries. By an act of that year issues of 

^ 3 Smith's Laws of Pennsylvania, 28. 
2 1 Dallas's Reports, 95 (1784). 

^ Proceedings of the Constitutional Conventions of Pennsyl- 
vania of 1776 and 1790, 70, 107. 



130 EARLY COURTS OF PENNSYLVANIA. 

fact were allowed to be tried in banc or at nisi prius by 
that court in the county of Philadelphia.^ 

A case that excited considerable interest at the time 
was the outlawry of Aaron Doan, one of the famous 
brothers who terrorized Bucks County and the surround- 
ing country. The defendant, having been attainted of 
robbery/ was brought into the supreme court on Septem- 
ber 24, 1784, and after hearing before the court upon 
several exceptions to the outlawry, all of which were 
overruled, execution was awarded. When the transcript 
of the record was remitted to the supreme executive 
council, in order that a warrant for the execution should 
issue, the humanity of President Dickinson seems to 
have been shocked that a man should be deprived of his 
life without a trial by jury and, accordingly, a letter was 
addressed to the supreme court inquiring whether there 
were any modern instances in England of persons being 
executed upon outlawry, or whether that had ever 
occurred in Pennsylvania, and was compatible with the 
constitution. Technical objections to the record were 
also raised.^ The court replied that, w^hile not bound 
to give reasons for their judgment and desiring that this 
should not be construed as a precedent, they gave it as 
their opinion that under the laws of the commonwealth 
and the common law they had no doubt that the prisoner 
had been properly outlawed and had forfeited his life, 
but could mention no case in Pennsylvania of a person 
executed upon outlawry by judicial proceedings alone, 
except that of one Daniel Dawson, who had been exe- 
cuted since the Declaration of Independence, in conse- 
quence of an attainder, by virtue of a proclamation of 
the supreme executive council and judicial proceedings 

^ XII Statutes at Large, 308; 2 Smith's Laws of Pennsylvania. 
392. 

^ Respublica v. Doan, 1 Dallas's Reports (Wharton's Edition), 
86 (1784). 



EARLY COURTS OF PENNSYLVANIA. 131 

thereon, in which the court aAvarded execution by sen- 
tence of death, no judgment having been given before. 
Dickinson was still dissatisfied and addressed a special 
message to the assembly on the subject, but no action 
was taken at that time and the humane scruples of 
Dickinson did not influence his successors, Franklin 
and Muhlenberg, upon the outlawry of the other Doans, 
Abraham and Levi.^ In fact except for the objections 
to the proceedings, as out of harmony with modern ideas, 
little sympathy would have been wasted on these des- 
peradoes who, from all accounts, richly deserved their 
sentences. By an Act of September 23, 1791,^ the 
process of outlawry was better regulated, and by the 
Act of April 22, 1794,^ the death penalty Avas abolished 
for all crimes except murder in the first degree. 

This reform was largely due to the efforts of William 
Bradford, who in that year became a judge of the 
supreme court, resigning a few years later to accept the 
office of attorney-general of the United States in Wash- 
ington's cabinet, whose brilliant career was cut short 
by an early death. Prior to this time the minutes of the 
supreme executive council are burdened with appeals 
for executive clemency and numerous orders appear 
for the remission of corporal punishment, as well as of 
death sentences. That the council had an eye to 
dramatic effect, or were convinced of the value of mental 
suggestions, is indicated by one order in which a reprieve 
is granted to a prisoner "which the sheriff is not to 
make known to him until he be taken under the gallows." ^ 
Executions were still public and were attended by vast 
crowds, drawn by the same morbid curiosity as is 

1 XV Colonial Records, 505, 544; Watson's Annals of Phila- 
delphia (1850), Vol. II, 330. 

2 3 Smith's Laws of Pennsylvania, 37. 

^ 3 Smith's Laws of Pennsylvania, 186. 
^ XV Colonial Records, 31. 



132 EARLY COURTS OF PENNSYLVANIA. 

exhibited by their descendants who feast on the pub- 
lished details of the so-called private executions.^ 

In 1790 a new constitution for the state was drafted 
and adopted by a convention called for that purpose. 
The old constitution had many defects and the newly 
adopted constitution of the United States offered a 
model which many were eager to imitate. In the new 
constitution the legislative, executive and judicial powers 
were distinguished and defined according to the now 
classic American method, and the state was provided 
with a governor and a senate as well as an assembly. 
In remodeling the judiciary, the subject with which we 
are concerned, an earnest but unsuccessful effort was 
made to establish a court of chancery. The principal 
changes in the judiciary were embodied in the follow- 
ing clauses of Article V relating to the judiciary:^ — 

"Sec. 2. The judges of the supreme court, and of the several 
courts of common pleas, shall hold their offices during good 
behaviour: But for any reasonable cause, which shall not be 
sufficient ground for impeachment, the governor may remove 
any of them, on the address of two-thirds of each branch of the 
legislature. The judges of the supreme court, and the presidents 
of the several courts of common pleas shall, at stated times, 
receive, for their services, an adequate compensation, to be 
fixed by law; which shall not be diminished during their con- 

^ 12 Hazard's Pennsylvania Register, 117; 13 Hazard's 
Pennsylvania Register, 4. When, in 1783, it was proposed in 
England to do away with the public procession to Tyburn, Dr. 
Samuel Johnson remarked, in his vigorous manner, to Sir 
William Scott: "Sir, executions are intended to draw spectators' 
If they do not draw spectators, they don't answer their purpose. 
The old method was most satisfactory to all parties; the public 
was gratified by a procession; the criminal was supported by it. 
Why is all this to be swept away?" Boswell's Life of Johnson, 
chapter 56. 

2 Proceedings of the Constitutional Conventions of Pennsyl- 
vania of 1776 and 1790, 301, and 3 Smith's Laws of Pennsylvania, 
xxxix. 



EARLY COURTS OF PENNSYLVANIA. 133 

tinuance in office; but they shall receive no fees or perquisites 
of office, nor hold any other office of profit under this common- 
wealth. 

"Sec. 3. The jurisdiction of the supreme court shall extend over 
the state; and the judges thereof shall, by virtue of their offices, 
be justices of oyer and terminer and general gaol delivery in the 
several counties. 

"Sec. 4. Until it shall be otherwise directed by law, the several 
courts of common pleas shall be established in the following 
manner: The governor shall appoint in each county, not fewer 
than three, not more than four judges, who, during their con- 
tinuance in office, shall reside in such county: The state shall 
be, by law, divided into circuits, none of which shall include 
more than six, nor fewer than three counties. A president shall 
be appointed of the courts in each circuit, who, during his con- 
tinuance in office, shall reside therein. The president and judges, 
any two of whom shall be a quorum, shall compose the respective 
courts of common pleas. 

"Sec. 5. The judges of the courtof common pleas in each county 
shall, by virtue of their offices, be justices of oyer and terminer 
and general gaol delivery, for the trial of capital and other 
offenders therein; and two of the said judges, the president 
being one, shall be a quorum; but they shall not hold a court of 
oyer and terminer or gaol delivery in any county, when the 
judges of the supreme court, or any of them, shall be sitting in 
the same county. The party accused, as well as the common- 
wealth, may, under such regulations as shall be prescribed by 
law, remove the indictment and proceedings, or a transcript 
thereof, into the supreme court." 

The most important changes, as will readily be seen, 
were the restoration of life tenure to the judges and the 
grouping of the counties into circuits with a president 
for the common pleas courts therein, a measure rendered 
necessary by the growth of the state, particularly in the 
West. By the appointment of judges learned in the 
law to preside over the lower courts in the respective 
circuits some measure of relief was afforded to the 
supreme court, whose work was becoming increasingly 
arduous. 



134 EARLY COURTS OF PENNSYLVANIA. 

By the Act of April 13, 1791,^ the courts were estab- 
lished in conformity with the new constitution. The 
supreme court was required to hold three terms a year 
and courts of nisi prius in the intervals. The state was 
divided into five circuits or districts (increased in 1806 
to ten), each comprising a group of counties, and for 
each district a president judge learned in the law was 
appointed by the governor who, with not less than 
three, or more than four other persons, commissioned as 
judges for each of the counties in the circuit, formed 
for such counties, respectively, the courts of common 
pleas, oyer and terminer, quarter sessions and orphans' 
court. The president and any two of the judges, with 
the register of wills, comprised the register's court. 

In cases involving more than four hundred dollars, a 
writ of error lay from the supreme court and the register's 
court to the high court of errors and appeals, which 
was also remodeled, and, under this act, comprised the 
judges of the supreme court and the presidents of the 
common pleas, with three other persons of known legal 
ability commissioned in the same manner as the judges 
of the supreme court. It was further provided that such 
judges as should have given judgment below should be 
excluded from sitting on the hearing of that cause on 
appeal. The high court of errors and appeals sat once 
a year in Philadelphia. On the organization of this 
court Benjamin Chew, the former provincial chief justice, 
was named as an extra member and was made presi- 
dent of the court, the other extra places not being 
filled. 

By another act of the same date the salaries of the 
judges were fixed as follows: Chief justice of the supreme 
court ;^1000, associate justices and president judge of 
first district i^GOO, presidents of other districts ;^500.^ 

^ 3 Smith's Laws of Pennsylvania, 2S. 

2 April 13, 1791, 3 Smith's Laws of Pennsylvania, 26. 



EARLY COURTS OF PENNSYLVANIA. 135 

When it is remembered that these are not pounds 
sterling, but Pennsylvania currency, the modesty of 
the salaries is but too evident. Thirty shillings a day 
were allowed to each justice of the supreme court for 
traveling expenses when on circuit. In 1796 the salaries 
of the associate justices and the president of the first 
district were raised $400 and of the other presidents 
$266.67. At the time of the Constitutional Convention 
of 1837, the salary of the chief justice of the supreme 
court was $2666 and of the associate justices $2000 #ach, 
with an allowance for mileage and expenses on circuit. 
The judges of the district courts were paid $2000 each, 
as well as the judges of the common pleas for the first 
judicial district. In the other districts the president 
judges of the common pleas received $1600 and the 
associates $140 with mileage.^ 

In 1799, further changes were made in the jurisdiction 
of the courts, which for some time were the subject of 
constant legislative experiments. As the population 
grew, the impracticability of keeping up the system of 
nisi prius sessions of the supreme court became more 
and more obvious, while to the suitors and the bar, the 
hardship and expense of crossing the Alleghenies to 
attend a session of the court in banc, at Philadelphia, 
in the days before railroads, amounted to a denial of 
justice. But the bar was not yet prepared to give up its 
inherited fondness for itinerant justice, and the courts 
of common pleas of the newly established judicial dis- 
tricts had not been long enough in operation to be 
recognized as the true solution of the problem. The 
Act of March 20, 1799, ^ therefore provided that 
instead of nisi prius courts, there should be held, except 
in the county of Philadelphia, circuit courts which were 

^ Debates of Pennsylvania Constitutional Convention of 
1837, Vol. 1, 263. 

^ 5 Carey & Bioren's Laws of Pennsylvania, 694. 



136 EARLY COURTS OF PENNSYLVANIA. 

of the same nature as the court of nisi prius except that 
the judges holding the same were empowered to give 
judgment, pass decrees and aw^ard execution in as ample 
a manner on circuit as when sitting in banc. The right 
of appeal to the supreme court was preserved under 
special conditions. 

Although not required by the act by which these 
courts were constituted, it continued to be the practice, 
as before, for two judges to ride on circuit and sit together 
at trials in these courts. This was unnecessary, as the 
time of the judges could have been better distributed by 
sitting singly on jury trials, while trials conducted by 
two judges were subject to the same inconvenience as 
when conducted by the four judges sitting in banc, 
which, as Judge Brackenridge has remarked,^ caused 
great delay, as documents offered in evidence had to be 
read by all the judges in turn and a note taken by each. 

Trials in banc were abolished in Philadelphia by the 
Act of February 24, 1806,^ which also established a 
western district for the supreme court, which was re- 
quired to hold its September term at Pittsburg. It 
was also provided that in the future circuit courts 
should be held by one judge and that the judges should 
alternate so that the same judge w^ould not sit oftener 
than once in the same county in every fourth successive 
term. The act also abolished the high court of errors 
and appeals and vested its powers in the supreme court. 
As respects the common pleas, the state was divided 
into ten judicial districts and a president judge appointed 
in each of the new districts. It was further provided 
that whenever required by either party or counsel 
the judge should reduce his opinion to writing with his 
reasons and file the same of record in the cause. ^ 

1 Brackenridge's Law Miscellanies, 283. 

2 4 Smith's Laws of Pennsylvania, 270. 

3 See also the Act of March 6, 1812 (5 Smith's Laws of Penn- 
sylvania, 308). 



EARLY COURTS OF PENNSYLVANIA. 137 

By an act of April 10, 1807/ a middle district was 
established for the supreme court, the term to be held at 
Sunbury, and again in 1809^ two additional districts 
were established, the Lancaster district, and the southern 
to be held at Chambersburg. By this act the circuit 
courts were abolished, and the cases undetermined 
therein relegated to the common pleas or, where appeals 
were pending, to the supreme court. The number of 
judges of the supreme court was reduced from four to 
three. By another supplement to the Act of 1806, 
enacted in 1810,^ the original jurisdiction of the supreme 
court was restored in Philadelphia County in cases 
involving over $500, the judges being required to hold 
nisi prius courts there thirty-three weeks in the year. 

To dispose of the accumulation of business a new 
court called the district court was created for the city 
and county of Philadelphia, by the Act of March 30, 
1811,* to consist of a president and two assistant judges 
with power to hear and determine all civil pleas and 
actions where the sum in controversy exceeded one 
hundred dollars. The act was experimental and limited 
to six years, but the court was such an unqualified 
success that it was continued, made permanent, and 
similar courts established later in Pittsburg and Lan- 
caster. From the first this court absorbed the most 
important legal business of the county and acquired 
an "enduring reputation as a great law court for the 
trial of civil issues,"^ the greatest this commonwealth 
has ever seen; but the names of its most famous judges 
belong to a later period. 

No further experiments were tried with the supreme 
court until 1826, when an act was passed increasing the 

^ 4 Smith's Laws of Pennsylvania, 448. 

2 March 11, 1809, 5 Smith's Laws of Pennsylvania, 15. 

3 March 10, 1810, 5 Smith's Laws of Pennsylvania, 158. 
^ 5 Smith's Laws of Pennsylvania, 223. 

^ Martin's Bench & Bar, 78. 



138 EARLY COURTS OF PENNSYLVANIA. 

number of justices to five and restoring the circuit 
courts.^ The cup of that overworked body was now 
fulL They were required to hear all cases of error and 
appeal sitting in six districts, to hold a court of nisi 
prius in Philadelphia, to go on circuit through the 
counties, beside exercising original jurisdiction in cases 
of quo warranto and mandamus. Relief came in the 
Act of April 14, 1834,^ passed on the recommendation 
of the commissioners appointed to revise the civil code. 
Circuit courts were finally abolished and the number of 
districts reduced to four (the eastern at Philadelphia, 
northern at Sunbury, middle at Harrisburg and western 
at Pittsburg) ; courts of nisi prius continued to be held 
twice a year in Philadelphia by a single justice for the 
trial of civil actions involving more than five hundred 
dollars, reviewable by the court in banc upon motions 
for new trial or in arrest of judgment. 

At the risk of being tedious we have briefly reviewed 
the many changes in the judiciary system between the 
Revolution and the revision of the civil code in 1834- 
36, touching on these acts in but a cursory manner 
without attempting to point out many important fea- 
tures which were incorporated into later legislation and 
became a permanent part of the system. The changes 
made were many of them experimental, some met with 
success, others were doomed to failure; they were forced 
by the extraordinary growi:h of the commonwealth in 
population and wealth and the increase in the araount 
and importance of the business of the courts. The 
law of real estate still had first place, land was the prin- 
cipal asset of the inhabitants, and the loose methods 
of the land office were an invitation to litigation, not to 

1 April 8, 1826, P. L. 265. 

2 P. L. 341. See Fourth Report of the Commission to Revise 
the Civil Code (1834). The northern district of the supreme 
court was afterwards abolished. 



EARLY COURTS OF PENNSYLVANIA. 139 

speak of the additional complications arising from 
Connecticut and Virginia titles. Ejectments innumer- 
able occupied the attention of the courts. But commer- 
cial law was every day becoming more important, 
particularly in Philadelphia, then the first city in the 
country and for some years the nation's capital. The 
legal profession enjoyed great prosperity during the 
early days of independence; recklessness and paper 
money inflation had increased private debts to an 
enormous extent and this, with the settlement of the 
loyalists' estates, filled the dockets with more cases than 
could be tried. This naturally led to envy and jealousy 
of the bar, which in Massachusetts culminated in riots 
directed against the courts, an incident referred to in 
history as Shays' rebellion.^ 

In Pennsylvania there was no open attack on the 
courts while McKean was chief justice, whose stem 
judicial deportment and inflexible courage were suffi- 
to awe the mob. No one could doubt his devotion to 
the cause of independence, but if a democrat in theory 
he was an aristocrat in bearing. David Paul Brown 
relates^ that "shortly after his appointment, a petition 
was presented to him directed to the Right Honorable 
Thomas McKean, Esq., lord chief justice of Pennsyl- 
vania, upon which he complacently observed — 'these 
are, perhaps, more titles than I can fairly lay claim to, 
but at all events the petitioner has erred on the right 
side.' " Court was, in his time, opened with great 
ceremony and form, and the chief justice held the 
attendants to a rigid observance of duty. There are 
several cases which illustrate this jealousy of the author- 
ity of the court, of which the famous libel case Respublica 



^ McMaster's History- of the American People, Vol. I, 302, 
et seq. 

2 The Forum, Vol. I, 327. 



140 EARLY COURTS OF PENNSYLVANIA. 

V. Oswald,'^ may be taken as an example, as well as the 
following incident stated by Brown to have occurred 
in 1778. The chief justice had issued a warrant for the 
arrest of Colonel Robert L. Hooper, a deputy quarter- 
master, on a charge of libel. Colonel Hooper informed 
General Greene, who wrote to the chief justice stating 
that there was no one to fill the colonel's place and 
requesting that he might be permitted to enter into a 
recognizance to appear at court later. The chief justice 
replied as follows : — 

"Yorktown, June 9th, 1778. 

"Sir: — I have just now received your favor of the 3d inst., 
and am not a little surprised that the sherifE of Northampton 
county should have permitted Colonel Robert L. Hooper, after 
he was arrested by virtue of my precept, to wait upon you until 
he appeared before me. 

"You say, sir, 'Colonel Hooper waited upon me to communi- 
cate his situation, and to know if the circumstances of the army 
would admit of his absence; but, as the army is just upon the 
wing, and part of it will, in all probability, march through his 
district, I could not, without great necessity, consent to his 
being absent, as there is no other person that can give the 
necessary aid upon this occasion.' 

"I do not think, sir, that the absence, sickness, or even death 
of Mr. Hooper could be attended with such a consequence, that 
no other person could be found who could give the necessary 
aid upon this occasion; but what attracts my attention the 
most, is your observation that you cannot, without great necessity 
consent to his being absent. As to that, sir, I shall not ask 
your consent, nor that of any other person, in or out of the army, 
whether my precept shall be obeyed or not in Pennsylvania. 

' 'The warrant for the arrest of Mr. Hooper being special, no other 
magistrate can take cognizance thereof but myself. The mode 
you propose, of giving bail, cannot be adopted, for many reasons. 

"I should be very sorry to find that the execution of criminal 
law should impede the operations of the army, in any instance; 
but much more so to find the latter impede the former. 
"I am, sir, with much respect, 

"Your most obedient, humble servant, 

Thomas M'Kean."^ 

1 1 Dallas's Reports, 319 (1788). 

2 The Forum, Vol. I, 330. 



EARLY COURTS OF PENNSYLVANIA. 141 

In 1799 McKean was elected governor and was suc- 
ceeded on the bench by Judge Shippen, then seventy 
years old, who had studied under Tench Francis and at 
the Middle Temple. Chief Justice Shippen was a patient, 
practical and discriminating lawyer and it was from his 
notes that the first reported cases in Pennsylvania were 
taken. He indeed formed a connecting link between 
the courts of the province and those of the common- 
wealth, having sat on the bench during both periods. 
This very fact, which caused him to be venerated by 
the bar, was calculated to increase the hatred with 
which he and his colleagues, Yeates and Smith, were 
regarded by the radical politicians. The three judges 
from their wealth and social connections were regarded 
as representatives of the old aristocracy, while the defeat 
of the Federalist party, in 1799, left those who had 
taken office in its day of power exposed to all the dangers 
of political revenge. The tenure of the judiciary was 
for life and it filled the earnest partisans of the new 
democracy with rage to see all the places on the bench 
filled with those whose sentiments were scarcely less 
detested than those of the Tories. 

The first to be marked for attack was Alexander 
Addison, president judge of the fifth judicial district, 
which, when formed in 1791, comprised Westmoreland, 
Fayette, Washington and Allegheny Counties, all of 
the western part of the state. Addison, a Scotchman 
by birth, had been educated for the ministry, but had 
changed to the law, and while practicing in the western 
counties had served as a member of the convention that 
framed the Constitution of 1790. An aggressive Federal- 
ist, his views were out of harmony with those of the 
greater portion of the local population, while his strong 
opposition to the Whiskey Insurrection did not increase 
his popularity with the rough inhabitants of that wild 
region. It was Addison's habit to deliver political ser- 



142 EARLY COURTS OF PENNSYLVANIA. 

mons from the bench under the guise of charges to the 
grand jury. These interminable discourses were pub- 
lished and greatly admired by the Federalists, but 
detested by the Democrats, who, in attending court as 
parties or jurors, were obliged to listen respectfully to 
the heavy campaign literature of their opponents.^ 
Judge Addison was particularly fond of dwelling upon, 
the enormities of the French revolutionists as a warning 
to good citizens against those admirers of that revolution 
who were prominent among the Anti-Federalists. xAside 
from these foibles, Addison was an able, upright and 
energetic judge, and had toiled ceaselessly to bring 
order out of confusion in the western district. His 
learning was regarded with respect by the bar and his 
firmness had won the confidence of the better class of 
citizens. When the party of Jefferson triumphed in 
1799, Addison was the first victim of their revenge. His 
leading enemy was, like himself, a theologian who had 
turned to the law, had built up an extensive practice 
and had just been appointed to the supreme court, 
Hugh Henry Brackenridge, of whom more hereafter. 

Instigated by Brackenridge, John B. C. Lucas, a 
justice of the peace, unlearned in the law, at the court 
of quarter sessions of Allegheny County, attempted 
to address the grand jury and was prevented by Judge 
Addison on the ground that in such matters the presi- 
dent judge was the mouthpiece of the court. Lucas 
brought the matter before the supreme court on a motion 
for leave to file an information against Addison for 
misconduct on the bench, but the court declined to 
interfere, although of opinion that the associate judges 
had a right to express their opinions.^ Lucas again 
attempted, at the court held June 22, 1801, to address 

^ See specimens of these charges in Appendix to Addison's 
Report. 

^Commonwealth v. Addison, 4 Dallas's Reports, 225 (1801). 



EARLY COURTS OF PENNSYLVANIA. 143 

the grand jury and was again prevented by Judge Addi- 
son with the concurrence of another colleague. The 
paper Lucas intended to read had nothing to do w^ith 
the duties of the jury, but contained some trifling 
remarks of a semi-political nature, composed per- 
haps by Brackenridge.^ For this act Addison was 
impeached by the house of representatives on Janu- 
ary 26, 1803, convicted by the senate, by a vote of 
twenty to four, and sentenced to be removed from office 
and forever disqualified from holding the office of judge 
in the commonwealth. Judge Agnew has described this 
trial as "the most flagitious ever urged on by vicious 
hate and obnoxious partisanship,"^ and the conduct 
of the legislature in this matter has met with general 
reprobation. Under the circumstances Addison had 
acted perhaps injudiciously, but his purpose was to 
preserve the dignity of the court and the punishment 
he received was unreasonably harsh. 

Having tasted blood, the legislature next turned its 
attention to the supreme court. In February, 1803, a 
petition was presented to the house of representatives 
by one Thomas Passmore, complaining that he had 
been arbitrarily fined and imprisoned for a constructive 
contempt of court in violation of the bill of rights and 
praying for the impeachment of the judges who had 
taken part in the proceedings. The matter went over 
to the following session when it was referred to a com- 
mittee which recommended the impeachment of Chief 
Justice Shippen and Justices Y^eates and Smith, and 
accordingly, articles of impeachment, adopted on March 
23, 1804, were presented to the senate. On January 5, 
1805, at Lancaster, then the capital of the state, the 



^ See the printed report of Addison's Trial (1803). 
^Address before the Allegheny Bar Association, Pennsylvania 
Magazine, Vol. xvi, 1. 



144 EARLY COURTS OF PENNSYLVANIA. 

trial began. The cause of this impeachment was a 
proceeding in the supreme court, which will be found 
reported in the case of Bayard v. Passmore.^ The brig 
Minerva belonging to Passmore, which had been insured 
in 1801 by certain underwriters including the firm of 
Petit and Bayard, sprang a-leak and put into New- 
Brunswick where Passmore abandoned her to the 
underwriters. Some of the latter refused to pay on the 
ground that the vessel was unseaworthy when she 
sailed. An amicable action was entered and the matter 
referred to arbitrators, who made an award in favor 
of the plaintiff. Judgment was entered on the award 
and a fi. fa. issued, but, on motion, the execution was 
set aside, and a rule granted to set aside the award, on 
exceptions filed by the defendant. These exceptions 
were based partly on irregularities in the proceedings 
and partly on the merits of the case. While the excep- 
tions were pending, Passmore, who seems to have been 
exasperated at the delay, posted on a board in the 
exchange room of the city tavern the following notice: — 

"The subscriber publicly declares, that Petit and Bayard, of 
this city, merchants and quibbling underwriters, has basely 
kept from me the said subscriber for nine months about 500 
dollars, and that Andrew Bayard, the partner of Andrew Petit, 
did on the 3d or 4th inst. go before John Inskeep, esq., aldermen, 
and swore to that which is not true, by which the said Bayard 
and Petit is enabled to keep the subscriber out of his money 
for about three months longer, and the said Bayard has meanly 
attempted to prevent others from paying the subscriber about 
2500 dollars but in this mean and dirty action he was disappointed 
in; I therefore do publickly declare, that Andrew Bayard is 
a liar, a rascal and a coward, and do offer two and a half per 
cent, to any good person or persons to insure the solvency of 
the said Bayard and Petit for about four months from this date. 

"Philadelphia, September 8, 1802. 

"Thomas Passmore." 



3 Yeates's Reports, 438 (1802). 



EARLY COURTS OF PENNSYLVANIA. 145 

Thereupon Mr. Dallas, the attorney for Bayard and 
Petit, moved for an attachment against Passmore for 
contempt of court, which was granted and interrogatories 
filed, which Passmore answered. On the issuing of the 
attachment the court expressed its opinion that an 
apology was due to the defendants. The answer of 
Passmore disclaimed any intention to treat the court 
with contempt and admitted that the paper had been 
posted in a moment of irritation but declined to make 
an apology to the defendants. It was argued that there 
was no suit pending when the notice was posted, the 
proceedings having closed with the award of the arbi- 
trators, but the court held otherwise, being of the opinion 
that a contempt had been committed. As Passmore 
declined to make any atonement to the injured indi- 
viduals which would influence the court to leniency, he 
was sentenced to pay a fine of fifty dollars and suffer 
imprisonment for thirty days. This sentence was 
carried out. 

As the law then stood Passmiore was clearly guilty, 
and even if not, the sentence was given after a patient 
hearing and full argument and amounted at most to an 
error of law, for which Passmore had a remedy by appeal 
to the high court of errors and appeals, a point upon 
which he was advised by William Lewis, one of the 
leaders of the bar. But this remedy was not pursued. 
Passmore paid his fine, served his sentence and sought 
revenge by the aid of a partisan assembly. 

When the time of the trial arrived public feeling had 
turned in favor of the judges, the better class of news- 
papers took their side and the bar rallied to their defense; 
in fact the assembly found it impossible to procure 
eminent local counsel to assist them in their odious task 
and Caesar A. Rodney of Delaware, was retained for the 
prosecution. The defendants were represented by Jared 
Ingersoll and Alexander J. Dallas. 



146 EARLY COURTS OF PENNSYLVANIA. 

The trial began on the eighth of January, 1805, and 
lasted until the twenty-eighth of the month. ^ Many 
witnesses were called and all the litigation which gave 
rise to Passmore's commitment was minutely reviewed. 
In summing up Mr. Boileau, one of the managers for the 
house, argued that Passmore had not been punished 
because he had committed a contempt of court but 
because he would not apologize to Bayard, and declared 
that the court had no authority to direct one individual 
to apologize to another. His address was a violent 
attack on English precedents and the legal profession 
in general, with the usual platitudes on the rights of 
man and the principles of the Revolution. Mr. Rod- 
ney's speech was more dignified and it is apparent that 
his task was uncongenial. For the defense the speeches 
of Dallas and Ingersoll were brilliant and exhaustive, 
replete with reported precedents as well as manuscript 
records, which their industry had discovered and which 
throw much light on the early practice of the courts 
in attachments. That any doubt could be felt as to the 
issue of this trial is a matter for wonder, and that 
thirteen out of twenty-four senators voted for convic- 
tion is a lasting disgrace to their names. Fortunately, 
the prosecutors failed by three votes to obtain a two- 
thirds vote, and the judges were declared acquitted. 

One incident of the trial deserves mention. Judge 
Brackenridge was not on the bench when the motion 
for the attachment of Passmore was made, and at the 
time of the argument was returning from a special court 
in Northumberland County, but was present when sen- 
tence was passed. He was not included in the impeach- 
ment, but at once wrote to the house of representatives 
stating that he concurred in the opinion of his brethren, 
and while not courting prosecution, could see no distinc- 

^ See printed report of the Judges' Trial (1805). 



EARLY COURTS OF PENNSYLVANIA. 147 

tion in his case and asked to be included in the impeach- 
ment. The house sent up an address to Governor Mc- 
Kean for his removal, which was refused, and when a 
committee urged that the term in the constitution "may 
remove" meant "must remove," he replied that he would 
have them know that "may" sometimes meant "won't." ^ 
This offer to stand impeachment with his colleagues 
was the most courageous act in the public career of the 
most eccentric genius that ever sat on our supreme bench, 
about whom a few words may be interesting. Hugh 
Henry Brackenridge, born in Scotland, of poor parents, 
was brought as a child to this country. By teaching 
school he saved enough to attend Princeton College, 
where he became a tutor, studied divinity and later 
served as a chaplain in the Revolutionary army. In 
1778 he commenced the study of law with Samuel Chase, 
afterwards a justice of the supreme court of the United 
States, and, locating at Pittsburg, soon became a leader 
of the western bar. During the whiskey insurrection 
Brackenridge's conduct was not free from suspicion. 
His opinions were opposed to the excise tax, and, if he 
did not join the insurgents, he did not take a very firm 
stand against them. He was marked for arrest by 
Hamilton, but was saved, it is said, by James Ross, 
the rival bar leader of the western district, afterwards 
United States senator. At the bar Brackenridge was 
noted for his shrewdness, wit and eloquence, and was a 
writer of considerable talent; "Modern Chivalry," a 
satirical work from his pen, has gone through several 
editions. On the bench he did not display the same 
power as at the bar; his opinions were racy, but not 
profound and failed to do justice to his real learning; an 
untiring student, his dislike of convention led him at 
times into a show of flippancy. The enmity between 

1 The Forum, Vol. I, 4C8. 



148 EARLY COURTS OF PENNSYLVANIA. 

Judges Yeates and Brackenridge was a curious incident 
of the times. It probably dated from the time of the 
whiskey insurrection when Y^eates served as one of the 
commissioners to deal with the insurgents. No two 
men were ever more dissimilar in appearance, habits 
and opinions: Judge Y^eates a tall, florid, portly man, 
rich, aristocratic and fond of society; Brackenridge dark 
and sallow, of moderate means, a bookworm and recluse, 
and absolutely indifferent to his appearance. An ex- 
amination of the reports will show that the associates 
rarely agreed, and the position of Chief Justice Tilghman 
must have been peculiarly difficult. Indeed the eccen- 
tricities of Brackenridge, if half the traditions are true, 
would almost amount to insanity, but it is difficult at 
this day to say whether his want of judicial decorum 
arose from this cause or from his utter contempt for 
social conventions. Among the odd stories told of him 
is one narrated by David Paul Brown :^ — 

"During the time, as has been said, the circuits existed, a 
friend of the judge, riding in his carriage in the western part 
of the state, while a prodigious storm of wind and rain prevailed, 
saw a figure approaching, which resembled, what might be con- 
ceived of Don Quixote, in one of his wildest moods; a man, 
with nothing on but his hat and boots, mounted upon a tall, 
raw-boned Rosenant, and riding deliberately through the 
tempest. On nearer approach he discovered it to be Judge 
Brackenridge, and upon inquiring what was the cause of the 
strange phenomenon, Brackenridge informed him, that seeing 
the storm coming on, he had stripped himself and put the 
clothes under the saddle; 'because,' said he, 'though I am a 
judge, I have but one suit, and the storm, you know, would 
spoil the clothes; but it couldn't spoil me.' " 

The interminable criticism of and complaints against 
the judiciary during the early years of the nineteenth 
century were in a large measure due to the fact that 

1 The Forum, Vol. I, 404. 



EARLY COURTS OF PENNSYLVANIA. 149 

judges held office for life. The same processes were 
to be seen at work in the other states, culminating in the 
abolition of life tenure and the substitution of a term of 
ofifice varying, under the different constitutions, from 
one to twenty years. In Pennsylvania this result was 
accomplished by one of the constitutional amendments 
adopted in 1838, by which the terms of the supreme 
court judges were fixed at fifteen years and those of the 
common pleas judges at ten. This change was not 
adopted without vigorous opposition on the part of the 
leaders of the bar^ and is a subject upon which opinions 
differ today. We may suspect that, however loudly 
the political leaders who advocated the change may 
have declaimed against the dangers of caste prejudice, 
favoritism and despotic conduct, they were really look- 
ing at the offices with envious eyes and plotting to divert 
the meagre salaries to partisan purposes. This was the 
period when American political life, in its outward 
aspects at least, reached its lowest depths of degrada- 
tion, and that the judiciary should suffer thereby was 
inevitable. Americans had yet to learn that democracy 
was not synonymous with vulgarity and provincialism, 
that the American Revolution had not severed us from 
the traditions of our race, and that the French Revolu- 
tion had not emancipated us from the rules of social 
decorum. The American "Sans Culotte" was an un- 
lovely type, an iconoclast and a bitter partisan, and 
that he should have done his best to add the judiciary 
to the spoils system is not the least count in his indict- 
ment. 

The citation of English decisions in the opinions of the 
courts greatly exasperated the radical element. What 
were these precedents but the rags of despotism, who 
were the judges that had rendered them but tyrants, 

^ Debates of Pennsylvania Constitutional Convention of 1837, 
Vol. X, 148 et seq. 



150 EARLY COURTS OF PENNSYLVANIA. 

sycophants, oppressors of the people and enemies of 
liberty ! There was danger that our courts might be 
contaminated by the source from which they drew their 
inspiration, so an act was passed March 19, 1810,^ which 
provided that it should not be lawful to read or quote 
in any court of this commonwealth, any British prece- 
dent or adjudication which had been given or made 
subsequent to the fourth of July, 1776, except those 
relating to maritime law or the law of nations. Upon 
this act Judge Brackenridge wittily remarked:^ — 

"Were it not that I should be unwilling to enter into a contest 
with the legislature, where public opinion, or prejudice is on 
their side, I might be disposed to question the constitutionality 
of this act. It would seem to be abridging the right of the 
judiciary, to hear all reason on a question before them, 

What is't to us 

Though it were said by Trismegistus ? 

"But if we are to hear the saying of a lord, years, or centuries 
ago; and before the 4th July, 1776, why not what another lord 
has said since, to explain or contradict the adjudication? The 
fact is, early decisions were, many of them narrow; and why 
drink out of the neck of a gourd, rather than out of an open 
goblet; more especially if the fountain was muddy, out of which 
the gourd was filled; the stream of law in that country, now 
runs more clear in particular cases than centuries ago; and it 
will always remain so, the law being an improvable science." 

This act was repealed in 1836.^ 

It may be said, however, for those who railed against 
the courts, that many of the lay associate judges set 
anything but a good example of judicial dignity, and 
quarreled even to the point of coming to blows and drag- 

^ P. L. 136. See similar Act in New Jersey passed in 1799. 
New Jersey Statutes (1800), 436. 

2 Brackenridge 's Law Miscellanies, 525. 

3 Act of March 29, 1836, P. L. 224. 



EARLY COURTS OF PENNSYLVANIA. 151 

ging each other from the bench. ^ The law judges, who 
rode the circuits, manfully attempted to preserve in the 
log court houses of remote counties the dignity of West- 
minster Hall, and added to their unpopularity Avith the 
uncouth inhabitants by instructing them in manners as 
well as in the law. In his "Recollections of the West,"^ 
Judge Brackenridge's son, himself also a judge, gives an 
amusing picture of the first court held in Butler County. 
The court house was a log cabin into which bench, bar 
and the entire village population were crowded. The 
audience hung from the rafters like bats, and when these 
were cleared away by the sheriff, a big Irishman objected 
to being removed. The Court sentenced him to an 
hour's imprisonment for contempt, whereupon the sheriff 
was greatly puzzled as to what he should do with his 
prisoner, as there was no jail. It was finally decided 
that he should be incarcerated in a pig pen, emptied to 
prepare a feast for the court, but the prisoner was too 
much for his captors and made his escape into the brush. 
Rapid as was the tide of immigration into western 
Pennsylvania it was only by slow degrees that a well 
organized system of local government was introduced. 
Westmoreland County, comprising most of the western 
district, was established in 1773 with a county seat at 
Hannastown, but the confusion incident to the Revolu- 
tion and the boundary dispute between Pennsylvania 
and Virginia retarded the growth of local institutions. 
Court was held at the house of Robert Hanna where 
petty offenders were sentenced to the pillory, stocks and 
whipping post, erected before the log jail. The first 
person, it is said, convicted of mmrder and hanged west 
of the Alleghenies was an Indian of the Delaware tribe 



1 McMaster's History of the American People, Vol. Ill, 154. 

2 Recollections of the West, H. M. Brackenridge. See ex- 
tract in Hazard's Pennsylvania Register, Vol. XIV, 172. 



152 EARLY COURTS OF PENNSYLVANIA. 

named Mamachatoga, who in 1785, while drunk, killed 
a white man near Pittsburg. At the trial at Hannas- 
town he was defended by Brackenridge, but Chief 
Justice McKean who presided held that drunkenness was 
no excuse and the defendant suffered the extreme 
penalty of the law.^ In the early days when the fifth 
judicial district embraced practically all of western 
Pennslyvania litigation was slow, owing to the long 
intervals between the terms of court and the difficulty 
in procuring the attendance of witnesses. The law 
judge rode the circuit from county to county, attended 
or followed by the members of the bar, who, during the 
sessions of court, generally put up at one tavern and 
made a lively time of it. 

During the early years of the nineteenth century the 
supreme court was presided over by chief justices of 
reputation equal to any, and superior to most of those 
who have sat in American state courts, Tilghman and 
Gibson. William Tilghman came of a family of distin- 
guished lawyers; his father was secretary of the provin- 
cial land office, and his maternal grandfather, Tench 
Francis, the bar leader of the provincial court of his 
time. His first judicial appointment was by President 
Adams on March 3, 1801, to the circuit court of the 
United States for this circuit; hence he was one of the 
so-called "midnight judges," commissioned a few hours 
before Jefferson took office, and legislated out of office 
in the following year. In 1806 he w^as appointed chief 
justice by Governor McKean on the recommendation 
of his cousin, Edward Tilghman, who declined the office. 
His appointment gave offense to some of the minor 
Democrats, but the governor, although a leading mem- 
ber of that party, having once made up his mind on the 
subject, was not to be moved. 

^ History of Allegheny County (Errett), chapter xiv. 



EARLY COURTS OF PENNSYLVANIA. 153 

"A committee, consisting of Duane, Lieper, and others, were 
appointed by a town meeting to wait upon him, to inform him 
that the democracy of Philadelphia were utterly opposed to the 
nomination of William Tilghman as chief justice of Pennsylvania. 
The committee were introduced into the executive apartments, 
and the governor received them in his civil but reserved and 
aristocratic manner, treating them simply as his constitutents; 
when, however, they announced themselves as the representa- 
tives from the democratic party — the sovereign people — he 
bowed most profoundly, and inquired of them what the great 
democracy of Philadelphia required of him. They proceeded, 
and stated the purposes of their delegation, and in pretty plain 
terms gave him to understand that the appointment of Mr. 
Tilghman would never meet the approval of the democratic 
party. 'Indeed,' said the governor, 'inform your constitutents 
that I bow with submission to the will of the great democracy 
of Philadelphia; but by G — d, William Tilghman shall he chief 
justice of Pennsylvania."^ 

The confidence of the governor was justified by the 
long and distinguished career of his appointee, whose 
judicial decisions are marked by a comprehensive knowl- 
edge of the common law and an unusual clearness of 
diction. "Other Judges," says Binney, "may have had 
more learning under their immediate command, — none 
have had their learning under better discipline, or in a 
condition more effective for the duty upon which it was 
employed."^ 

An adequate life of his great successor, John Bannister 
Gibson, has still to be written.^ Appointed to the com- 
mon pleas in 1812 and to the supreme court in 1816, 
of which he became chief justice in 1827, his reputation 
increased with years, and common consent assigns to 

1 The Forum, Vol. I,' 343. 

^ See Binney's Eulogy on Chief Justice Tilghman, 16 Sergeant 
& Rawle's Reports, 444. 

^ See Eulogies in Appendix to 19 Pennsylvania Reports; 
W. A. Porter's Essay and article in Great American Lawyers, 
Vol. Ill, 353. 



154 EARLY COURTS OF PENNSYLVANIA. 

him the first place in our judicial history. "Abroad," 
said Chief Justice Black, "he has for many years been 
thought the great glory of his native state." Chief 
Justice Gibson has been credited with an abhorrence of 
the petty and prosaic details and drudgery of the law, 
qualities that would have militated against a successful 
career as, an advocate, but given a problem, no judge 
could grasp it more firmly or dispose of it more readily, 
and he was master of a style which in vigor of expression 
and condensation of thought is unrivalled. "When he 
brought the lens of his mind to a focus, its power was 
resistless." For one act in his career he was subjected 
to some criticism. The constitutional amendments of 
1838 substituted a term of fifteen years for life appoint- 
ment and the commissions of the judges on the bench 
were to expire at intervals of three years. At the sug- 
gestion of his colleagues, the chief justice resigned in 
1838, and was immediately reappointed, and thus, 
instead of holding for the shortest term, enjoyed the 
longest. The necessity for this action was no doubt 
humiliating to him, who could hardly have resumed 
practice at that period of his life, but on the other hand 
his loss to the state would, at that time of transition, 
have been irreparable, and when his term expired in 
1851, he was re-elected almost without opposition. 

If space permitted, it would be proper to say some- 
thing of the bar at this time, which was particularly 
distinguished. 

During the greater part of this period Philadelphia was 
the leading city of the nation, both in population and 
wealth, and the achievements of the local bar attracted 
national attention.^ Such leaders as William Lems, 



^ See the reprints and papers contained in the volume com- 
memorative of the One Hundredth Anniversary of the Phila- 
delphia Law Association. 



EARLY COURTS OF PENNSYLVANIA. 155 

Edward Tilghman, Jared Ingersoll, William Rawle, 
William Bradford, Alexander James Dallas, and Horace 
Binney, both in private practice and public office, ex- 
hibited talents that were admired and esteemed by their 
contemporaries and served as models for their students 
and successors, while in the West Albert Gallatin, James 
Ross and H. H. Brackenridge attained high distinction. 
Indeed, so much has been said about the good old times, 
that w^e are often in danger of minimizing professional 
progress, which, in the nineteenth century, has been in 
the nature of a world-wide forced march to keep pace 
with the flying wheels of Father Time's steam and elec- 
tric chariots. 

The first bar after the Revolution was a very remark- 
able body; most of its leaders had been educated at the 
Inns of Court or in offices steeped in black-letter tradi- 
tions. Devoted to the common law, they endeavored to 
inspire their pupils with the same spirit. Deprived by 
legislative shortsightedness of a court of equity they 
applied to the problem of working out equitable relief 
through common law forms the same sort of ingenuity 
that their ancestors had exercised in the invention of 
fictions to overcome the inelasticity of common law 
actions. Masters of their profession, they were jealous 
of all innovation, and the less important members of 
the bar took their cue from the leaders, in blissful igno- 
rance of the issues involved. As a result the agitation 
for codification that subsequently swept over the country 
was but faintly echoed in Pennsylvania. 

In pursuance of resolutions adopted by the legislature 
in 1830 a commission was appointed by the governor 
consisting of William Rawle, T. I. Wharton and Joel 
Jones, to revise, collate and digest all such public acts 
and statutes of the civil code of the state and all such 
British statutes in force in the state as were general and 
permanent in their nature. The commission made a 



156 EARLY COURTS OF PENNSYLVANIA. 

series of reports between 1831 and 1836 with drafts of 
proposed acts, most of which were, with some modifica- 
tions, enacted into law.^ That the members did their 
work thoroughly and well is proved by the fact that the 
acts passed on their recommendation are the basis of 
the present jurisdiction of and practice in the courts of 
the commonwealth. Their work, however, consisted 
mainly in repairing, restoring and strengthening the 
existing structure, a statutory system supplemented 
by so much of the common law as it had been found 
expedient to incorporate into the jurisprudence of a 
new community. Their cautious recommendations ac- 
corded with conservative public opinion, and the house- 
cleaning then done tended, undoubtedly, to check the 
sentiment for codification which has had such extraor- 
dinary results in England as well as in many of the 
states.^ Whether this is a blessing or a curse is a ques- 
tion upon which opinions may differ. At least, it may 
be suggested that three-quarters of a century has passed 
since this revision, during which time many statutes 
have been enacted which do not add clarity to the law, 
and that it may be worth while to examine some of the 
more notable procedural reforms, with a view to the 
introduction of such methods as have proved unquali- 
fiedly successful elsewhere and the ultimate simplifica- 
tion of our procedure, in the interest of common sense 
and social and economic progress. Self-laudation is one 
of our professional faults that frequently leads to narrow^ 
views and unprogressive provincialism. A peep over 
our neighbors' fences may lead us to the horrifying dis- 
covery that we are provincial in many respects. 

The revision of the civil code has been fixed as the 
limit of this discussion for the reason that there are 

^ The reports of the commissioners form a most instructive 
'commentary upon the early statute law of Pennsylvania. 
2 Hepburn's Historical Development of Code Pleading (1897). 



EARLY COURTS OF PENNSYLVANIA. 157 

members of the bar who can speak with authority from 
personal recollection upon the occurrences during the 
middle nineteenth century, and for the further reason 
that the judicial system had by that time assumed a 
form which in its main outlines, it still retains, subject 
to the changes introduced by the constitution of 1874.^ 
Relief has since been afforded to the supreme court by 
the establishment of an intermediate court of appeal, 
the superior court, and the transfer to the latter of a 
part of the appellate business.^ Both are courts for 
the hearing of appeals, none of the judges sitting at 
nisi prius, an arrangement that has been criticised as 
tending to disassociate the appellate judges from the 
main body of the judiciary, in contradistinction to the 
federal system. The number of common pleas judges 
has been greatly increased and the lay associate has 
almost disappeared.^ 

The most glaring defect in the system is in the minor 
judiciary. The magistrate, or justice of the peace, is a 
relic of the eighteenth century whose intelligence, edu- 
cation and social position have not kept pace with the 
general improvement. The holding of courts at this 
day by men unlearned in the law is an anachronism, a 
nuisance to those having to do with the collection of 
small debts and, frequently, a source of oppression to 
the poor. It is to be hoped that reform in this respect 
will not be unduly delayed by the necessity for the 
adoption of amendments to the constitution to make it 
complete. 

^ The Judiciary Article of the Constitution of 1874 is printed 
in the Appendix to this volume. Special pleading was abolished 
by the Act of May 25, 1887, P. L. 271, which substituted a 
hybrid system that is neither common law nor good code pleading. 

2 Act of June 25, 1895, P. L. 212, and its supplements. 

^ For the present personnel of the courts, see Smull's Legis- 
lative Handbook, current issue. 



158 EARLY COURTS OF PENNSYLVANIA. 

The early division of the state into judicial districts 
has had some unfortunate consequences. The bar of 
the state became divided into a number of local bars, 
mutually jealous and exclusive, practicing under dis- 
similar rules, without common interests or espirit de 
corps. The tendency to disunion has been checked by 
the formation of the State Bar Association, an organiza- 
tion that has already done much to promote uniform 
legislation as well as to encourage good fellowship in the 
legal fraternity. The appointment, too, by the supreme 
court of a state board to examine candidates for admis- 
sion to the bar has done much to standardize legal 
education in the state. 

Owing largely to her great natural resources Pennsyl- 
vania has enjoyed a prosperity in which both bench and 
bar have shared, but the first stages of that pros- 
perity were attained through the liberal and farsighted 
policy of William Penn, the founder. His adopted 
sons should at least be willing to view with open 
minds the innovations demanded by progress. The 
panorama from the housetop does not necessarily lead 
to a suicidal leap or a broomstick ride. 



CHAPTER IV. 

One of the most troublesome questions with which the 
colonial administrator had to deal was equity juris- 
prudence. In the early years of the seventeenth century 
politics entered into the contest for jurisdiction between 
the English court of chancery and the courts of common 
law, beclouding the issues and retarding a settlement 
of their respective spheres of action. Popular dislike 
pictured the chancellorship as a great political office 
closely identified with the Crown, and grudgingly ad- 
mitted its importance in the complex judicial system 
of England. On the other hand, the chancellor too fre- 
quently subordinated the judicial functions of his office 
to ministerial policy and permitted abuses in the organi- 
zation and administration of his court that impaired its 
usefulness and checked the growth of its business. At 
this early period chancery practice was concerned 
chiefly with questions connected with the devolution 
and management of real property and property held in 
trust, and many of the broader doctrines of equity were 
still in process of growth. Lord Nottingham, the 
father of modern equity, held the office of chancellor 
from 1673 to 1682, but was succeeded by several chan- 
cellors of inferior capacity who added nothing to the 
prestige of the court, while the masters and inferior 
officers were chiefly distinguished for rapacity and extor- 
tion, not to speak of incompetency and dishonesty, in the 
management of property committed to their care. ^ Re- 
form came, but too late to convince the more democratic 
communities of the positive advantages of chancery 
procedure, while the prevailing fanatical devotion to 

^ Parkes's History of the High Court of Chancery. 



r 



160 EARLY COURTS OF PENNSYLVANIA. 

trial by jury operated as a check upon any system that 
seemed to interfere with that palladium of liberty. 

It was manifestly impossible to administer complete 
justice according to the English system^ without the asser- 
tion of equitable rights and the enforcement of equita- 
ble remedies. Anything less would have amounted to 
a denial- of justice, and in so far as sonle few equitable 
rights were concerned, this was vaguely recognized. But 
a true appreciation of the necessity for the introduction 
of chancery procedure was obscured by a common and 
popular error which confused equity with so-called 
natural justice; an error for which chancery literature 
was, perhaps, itself in a measure responsible, in basing 
its claims to override the strict rules of the common 
law upon the strength of an intrinsic ethical superiority.**" 

Another obstacle to the introduction of equity juris- 
prudence was the primitive social conditions that pre- 
vailed in the sparsely populated settlements. There 
was sufficient difficulty in the conduct of an ordinary 
lawsuit in the local courts without adding to the embar- 
rassment of the magistracy by requiring them to solve 
the mysteries of the unreformed chancery pleading and 
practice. The colonial judge of the seventeenth and 
eighteenth centuries was in knowledge, and training 
about on a par with the English justice of the peace 
and it would have been as preposterous to expect 
the former to undertake the office of chancellor as 
to impose similar duties on the English quarter 
sessions. "When, in the eighteenth century, trained 
lawyers began to make their influence felt in the colonies, 
disputes and misunderstandings between the assemblies 
and the governors prevented the creation of or retarded 
the growth of courts of chancery,' resulting in a conflict 
of principles and practice in the several provinces far 

1 Maine's Ancient Law, chapter 3. 



EARLY COURTS OF PENNSYLVANIA. 161 

too intricate to be briefly described.^ (The theory 
upheld by the crown lawyers, and put in practice in the 
more tractable colonies, was that the governor, as cus- 
todian of the great seal, was the proper person to act as 
chancellor, assisted if necessary by the council. To 
this the more democratic communities were opposed, 
as an undue extension of the prerogative, but they 
had no substitute to offer except the direct exercise of 
equitable relief by legislative resolution or the delega- 
tion of limited equity powers to the ordinary courts, 
such as giving relief from the penal clauses of bonds and 
mortgages. It did not seem difficult to the uminitiated 
to inject into the law such equitable principles as would 
mitigate the harshness of its stricter rules. The limited 
scope of such an experiment and the deprivation in- 
volved, in the elimination of the powerful preventive 
measures afforded by chancery process, became apparent 
only when the commercial and industrial expansion of 
the American commonwealths had brought about more 
complicated social relations. 

The reform of procedure in the more progressive juris- 
dictions, has buried chancery and common law practice 
in a common tomb and if it were safe to hazard an 
opinion upon the parentage of the modem complaint, 
or statement, the inclination would be to favor the bill 
in equity rather than the common law declaration. But 
it would seem that before these momentous changes 
could well be brought about, it was necessary that both 
systems should reach the limits of their development, 
that there should be a thoroughly scientific demonstra- 

^ Courts of Chancery in the American Colonies, S. D. Wilson, 
American Law Review, Vol. XVIII, 226, reprinted in Select 
Essays in Anglo-American Legal History, Vol. II, 779; Story's 
Miscellaneous Writings, 151. History of Equity in the American 
Colonies, E. B. Gager, in Two Centuries' Growth of Am.erican 
Law, chapter 6. 



162 EARLY COURTS OF PENNSYLVANIA. 

tion of the economic waste involved in a dual and highly 
artificial procedure, before one more simple and rational 
could be evolved. Conservative opinion hesitates to 
endorse these changes, and the tendency, displayed in 
many jurisdictions, to overload procedure with petty 
statutory details, that ought to be left to the rules of 
court, shows an immature conception of the principles 
of law reform. If this is true today, how poorly pre- 
pared was the eighteenth century for experiments in 
jurisprudence, with a bar nourished on technicalities 
and trained to state almost every legal right in pro- 
cedural terms. 

Pennsylvania was one of the most persistent of the 
colonies in its opposition to the introduction of a court 
of chancery, and its courts were the most fertile in 
devising expedients to decrease the inconveniences 
resulting from such opposition, and this, although in 
the immediately adjoining colonies chancery had a 
fairly successful development. In the early period, 
political conditions had much to do with the failure of 
the only serious attempt to establish such a court. 
After the Revolution, opposition to the extension of 
equity jurisdiction long continued as a political tradi- 
tion, in spite of the changed attitude of the leaders of the 
bar. 

While the territory on the Delaware v/as under the 
government of the Duke of York it would seem to have 
been the intention to administer equity, in the popular 
sense of that word, through the court of assizes. Among 
the laws of April 2, 1664, was one that provided: — 

"In regard it is almost impossible to provide Sufficient Lawes 
in all Cases, or proper Punishments for all Crimes the Court of 
Sessions shall not take further Cognizance of any Case or Crimes, 
whereof there is not provition made in some Lawes but to remit 
the case or Crime, with the due Examination and proof to the 
Next Court of Assizes where matters of Equity shall be decided, 






EARLY COURTS OF PENNSYLVANIA. 163 

or punishment awarded according to the discretion of the 
Bench and not Contrary to the known Laws of England."^ 

This was amended at the court of assizes held in 
September, 1665, as follows: — 

"Where the Originall Point is matter of equity the proceede- 
ings shall bee by way of Bill and delivering in Answers upon 
Oath and by the Examination of witnesses, in Hke manner as is 
used in the Court of Chancery in England. And due regard 
must be had that the Defendant have timely notice thereof, as 
is appointed at Common Law; which is eight dayes warning 
before the Court shall sitt."^ 

In the following February it was ordained that 
"matters of Equity under five pounds may be tried in 
Town Courts and if under twenty at Sessions." This 
investing of the lower courts with equitable powers was 
undoubtedly intended to lessen the hardship of seeking 
relief in a distant court meeting but once a year, and its 
practical application was probably limited to giving 
effect to the more obvious equities of defendants. That 
such was the case, would appear from the instructions 
of Governor Andros to the justices of the court at New 
Castle dated August 14, 1677, in reply to a query on 
their part. 

"As to penal Bonds or such like cases of Equity it is the cus- 
tom & practice of Courts here, to hear & judge thereof accord- 
ing to Equity, wch you may also observe as Allowed by Law."^ 

At the court for Deal, afterwards Sussex, County held 
Tune 13 and 14, 1682, Henry Stracher obtained a verdict 
against Peter Groundyk in an ''action of the case," 
the nature of which is not disclosed, whereupon — 

^ Charter and Laws of Pennsylvania, 35. 
^ Charter and Laws of Pennsylvania, 61. 
3 V Pennsylvania Archives (2d series), 697. 



164 EARLY COURTS OF PENNSYLVANIA. 

"Peter Groundyk peticon the Court that he may have That 
was this day Tryd betwene Henry Stracher Ant this peticoner to 
be Tryd in Equiety, the next Court by bill and Answer as is use in 
the Court of Chancrey in England which the Court would A 
perswaded him to A dissisted in it; and rest himselfe satisfied 
in what was allready done; but through his perswading the 
Court grant the peticoner his request; provided that the pro- 
ceeding be put in in due time According to Law.''^ 

At the September court, however, nothing is recorded 
as to the "Tryal in Equiety" which the justices seem to 
have been reluctant to undertake. 

There are also instances where the governor at New 
York assumed the equitable power of granting relief 
against oppressive judgments at law, of which the follow- 
ing order is an illustration : — 

By the Governor 

Whereas Hendrick Jansen Van Bremen, of Swanyck or 
Paerden Hook, near Newcastle in Delaware River, hath preferr'd 
a Petition unto me setting forth, that having heretofore, in the 
Time of the Dutch, received great Damage in his Corne, by 
Mr Wm Toms Horses, by Reason of his insufficient Fence; It was 
Ordered, that Mr Toms Land there, should be Sold in Vendue, 
which said Order being not effected. The Petitioner since the 
Restoration of the English Government, took the said Horses 
off his Land, and sent them to Mr Tom at New Castle, desiring 
they might be kept from his Corne; But the Petitioner still sus- 
taining Damage, without Relief, he acknowledges that in Pas- 
sion, he rashly and unadvisedly, shot one of the said Horses, 
with small shot, whereof he not long after dyed; Whereupon 
Mr Tom Sued the Peticonr in the Court of Newcastle, from the 
which Appealing to the High Court, Judgment past against the 
Peticonr there for Six Hundred Guildrs to be paid by him to Mr 
Tom, for his Horse, besides One Hundred Guild rs Charges; But 
was neither call'd, nor heard there; Wherefore I have thought 
fitt, & do hereby Order, that the said Hendrick Jansen giving 
Security, by binding over his Person and Estate, to makegood 
his Complaint, That Execucon be Suspended; And that all the 

1 Sussex County Records (Turner), 76. 



EARLY COURTS OF PENNSYLVANIA. 165 

Proceedings, Papers, Writings, Passages or Proofs, both in Dutch 
and English Time, beforthwith Transmitted hither, for a final 
Determinacon in Equity. 

Given under my Hand in New Yorke this 25th day of May 
1676. 

E; ANDROS. 

To the Justices of the Peace of Newcastle in Deleware."^ 

A petition for equitable relief preferred by Arnoldus 
la Grange to Governor Andros in connection with the 
litigation concerning the title to Tinicum Island will be 
found in the archives, but the action taken thereon by 
the governor is not recorded.^ 

With the further history of equity in New York we 
are not directly concerned. By an act passed soon after 
the separation from Pennsylvania a court of chancery 
was authorized but the law seems to have been disre- 
garded.^ Lord Bellomont, the governor, writing to the 
lords of trade October 19, 1700, says: "There is a great 
want of a court of chancery here, but nobody here under- 
standing it rightly I delay appointing one till the judge 
and attorney general's coming from England."* The 
lords, in reply, directed him to establish the court at 
once and in the following year the court was proclaimed 
by ordinance of his successor. Lieutenant Governor 
Nanfan. Nothing, however, of importance seems to 
have been done and it would appear that some of the 
governors disliked the responsibility. Lord Cornbury, 
who was also appointed royal governor of New Jersey, 
wrote to the lords of trade on May 7, 1711: — 

^ V Pennsylvania Archives (2d series), 679. 

2 VII Pensnylvania Archives (2d series), 799. 

^ Broadhead's History of New York, Vol. II, 385, gives the 
date of the act as November 1, 1683. It appears in the laws of 
1694 as of 1691. Compare preface to 1 Johnson's Chancerv 
Reports (N. Y.). 

* New York Colonial Documents, Vol. IV, 882. 



166 EARLY COURTS OF PENNSYLVANIA. 

"In both plantations I have been pelted with petitions for a 
Court of Chancery; and I have been made acquainted with some 
cases which very much require such a court, there being no 
relief at common law, I had ordered the committee of both 
Councils to form a scheme for such a court, but to no purpose; 
the trust of the seals they say constitute a chancellor, and unless 
the Governor can part with the seals there can be no chan- 
cellor but himself. I have already more business than I can 
attend to, besides I am very ignorant in matters, having never 
in my life been concerned in any one suit. So I earnestly beg 
your lordship's directions as to that Court. "^ 

The court was also a favorite object of attack by the 
popular party. Governor Hunter on January 1, 1712, 
wrote : — 

"The country here, in general, groaned for a Court of Chan- 
cery which had been discontinued for some time before my 
arrival in these parts. * * =f: I gave a public notification of 
that court being opened, and the House of Representatives, in 
their angr\^ mood resolved that the erecting of such a court 
without their consent was against law."^ 

In spite of this and similar attacks the court main- 
tained its existence until reorganized after the Revolu- 
tion and adoption of the constitution of 1777, but the 
amount of business transacted was comparatively small 
until the time of Chancellors Livingston and Kent. 

In Pennsylvania and Delaware, as we have seen, 
Penn took over the local courts very much as he found 
them, exercising a supervisory jurisdiction through the 
provincial council. On the hearing of appeals before the 
latter body equitable principles were applied as is illus- 
trated by the case of Bellamy v. Watson, described in 
the court below as "an action of Trasspase and eject- 
ment" for land on Prime Hook. The case was tried at 
Lewes on May 27, 1683, before a jury who found a ver- 



^ IV New Jersey Archives, 70. 

2 New York Colonial Documents, Vol. V, 298. 



EARLY COURTS OF PENNSYLVANIA. 167 

diet for the defendant.^ The plaintiff appealed to the 
governor and council who heard the case in July and 
were unanimously of the opinion that one Smith, under 
whom the defendant claimed, had no title in law or 
equity. They entered judgment for the plaintiff, he 
to pay the defendant for his improvements, the value 
of which was to be fixed by appraisers, and gave the 
defendant four months' time in which to remove his 
crops, stock and "other moveable concernes."^ A year 
later it is recorded that the difference between Watson 
and Bellamy was amicably settled by mutual convey- 
ances, "and thus they agreed & shaked hands. "^ In 
another case that came before the council, that body 
seems to have been in doubt whether they ought to 
proceed in law or equity, but the nature of the business 
is not given.* 

By the Act of May 10, 1684, passed at New Castle, it 
was provided that the "Quarter Sessions be as well a 
court of Equity as Law, Concerning any Judgment given 
in Cases by Law capable of Triall in the respective 
County Sessions and Courts,"^ and by another chapter 
of the same act a provincial court was constituted, the 
judges of which were given cognizance of appeals and 
all causes both in law and equity not determinable by 
the county courts. This enactment seems to have caused 
some misgivings for in 1685 the council "Ordered that a 
bill be drawn up That y^ Word Equity be left out in ye 
Law off County Courts."^ The conception of equity 
then entertained is illustrated by the following case 
taken from the minutes of the court of common pleas of 



^ Sussex County Records (Turner), 97. 

2 I Colonial Records, 21, 4, 5 mo. 1683. 

3 I Colonial Records, 65, 14, 6 mo. 1684. 
* I Colonial Records, 63, 20 4 mo. 1684. 

'' Charter and Laws of Pennsylvania, 167. 
^ I Colonial Records, 75, 3, 2 mo. 1685. 



168 EARLY COURTS OF PENNSYLVANIA. 

Chester County, where the court sitting in equity, modi- 
fied its own judgment previously entered at law. 

"Josua Hastings v. Francis Yarnall. The Declaration was 
read — the answer was read. Judgment for plaintiff 25 shillings 
with costs of suit. Upon which the defendant makes his appeal 
to the next court of equity for this county. 

1686 at a court of equity "1 Commissioners present, John 
held at Chester ye oth day Bluston, Samuel Lewis, John 

of the 1st week of ye 10th ! Simcocke, Robert Wade, Geo. 
month, 1686 j Maris, Robert Pile, Bartholo- 

' mew Coppoche, Robert Eyre 
Clech. 

Francis Yarnall of this county preferred a bill to this court 
wherein he required a remedy against ye verdickt of Jury and 
Judgment of court obtained against him by Joshua Hastings of 
ye same county, at the last court of Common Pleas held for this 
county, at Chester, the 3rd and 4th days of this present weeke. 
Upon which it was decreed that Francis Yarnall should pay 10 
shillings and bear half the charges of that court. "^ 

Such proceedings gave offense to the people, as unduly 
interfering with the verdicts of juries, and in 1687 the 
assembly asked for a conference with the council upon 
certain questions, among them "how far y® County 
Quarter Sessions may be Judges of Equity as well as 
Law and if after a judgment in Law whether the same 
Court hath power to Resolve itselfe into a Court of 
Equity, and Either Mitigate, alter, or Revers y^ said 
Judgment."^ The council answered evasively that the 
law made at New Castle "doth supply and answer all 
occasions of appeal, and is a plainer rule to proceed by."^ 

By the Act of May 10, 1690, it was provided that the 
county courts "shall be Courts of equitie for the hearing 



^ Chester County Records, 3, 10 mo. 1686, quoted by Peter 
McCall in his address before the Law Academy, 21. 
- I Colonial Records, 159, 12, 3 mo. 1687. 
2 I Votes of the Assembly, 41. 



EARLY COURTS OF PENNSYLVANIA. 169 

and determining all matters and causes cognizable in 
the said Court, under the value of ten pounds," and that 
the provincial court should have the hearing and deter- 
mining of all appeals from the county courts both in 
law and equity.^ This statute was substantially re- 
enacted in 1693 during the administration of Governor 
Fletcher of New York.^ During all this time there were 
frequent petitions to the council, for relief against judg- 
ments of the courts, several of which were relegated to 
the county or provincial courts for a hearing in equity.^ 
The relief given under the name of equity would seem 
to have been similar to the discretionary powers of the 
courts now exercised on rules to open judgments, or in 
controlling verdicts on motions for new trials, and there 
is no trace of formal chancery proceedings. Neverthe- 
less the popular dislike of any interference with verdicts 
is voiced in a further complaint of the assembly, in 
1694, stating that the judges had too great liberty to 
destroy or make void the verdicts of juries and praying 
that they might be instructed not to decree anything in 
equity to the prejudice of judgments before given in 
law.* Even more vigorous would have been their 
remonstrance if there had been an attempt to intro- 
duce real chancery pleading, but this was foreign to the 
spirit of Penn's legislation, which permitted "all persons 
to freely appear in their own way and personally plead 
their own cases themselves, or if unable, by their 
friends."^ 

^ Charter and Laws of Pennsylvania, 184. The assembly 
tried to strike out the word equity, I Votes of the Assembly, 57. 

2 Charter and Laws of Pennsylvania, 214, 225. See also Act 
of November 27, 1700, II Statutes at Large, 134. 

3 I Colonial Records, 161, 18, 3 mo. 1687; I Colonial Records 
441, April 24, 1695; I Colonial Records, 442, May 25, 1695; I 
Colonial Records, 478, May 24, 1697. 

* I Votes of the Assembly, 79. 

^ Charter and Laws of Pennsylvania, 100, re-enacted Novem- 
ber 27, 1700; II Statutes at Large, 128. 



170 EARLY COURTS OF PENNSYLVANIA. 

The prolonged controversy between the assembly, the 
governors and the home government over the court 
laws that took place in the early years of the eighteenth 
century has been sufficiently discussed and will be re- 
ferred to here only in so far as it affected equity juris- 
diction. The Act of October 28, 1701,^ beUeved to have 
been drafted by David Lloyd, contained this provision: — 

"That the said ju?:tices in the respective county courts shall 
have full power, and are hereby empowered and authorized to 
hear and decree all such matters and causes of equity as shall 
come before them in the said courts, wherein the proceedings 
shall be by bill and answer, with such other pleadings as are 
necessary in chancery courts and proper in these parts, with 
power also for the said justices to force obedience to their 
decrees in equity, by imprisonment or sequestration of lands, 
as the case may require." 

An appeal was given to the provincial court, which 
was empowered to revoke, alter and confirm decrees 
according to equity and justice. 

This act, which was repealed by the queen in council 
on February 7, 1705, because the lords commissioners 
for trade conceived that so far from expediting the 
determination of lawsuits it would impede the same,^ 
attempted to introduce a more elaborate procedure 
without actually committing the courts to the English 
practice, and, like all half measures, would have led to 
confusion and litigation. One can imagine the unlearned 
judges of the county courts deciding how much chancery 
pleading was "proper in these parts." There is no 
trace of any proceedings had under its authority; in fact 
Chief Justice Guest in 1703 made a complaint to the 
council — 



^ II Statutes at Large, 148. See Charter and Laws of Penn- 
sylvania, 300. 

2 II Statutes at Large, 481. 



( 



EARLY COURTS OF PENNSYLVANIA. 171 

"That notwithstanding ye Laws of this Govmt had erected 
Courts of Equity & ye Justices, have a power also in their 
Commission for ye same: Yet that to ye great oppression of ye 
People, there have been no such courts as yet held in pursu- 
ance of ye present Law, the Rules of ye said Court not having 
yet recevd so full a sanction as tis thought may be requisite."^ 

It was ordered that the rules should be produced at 
the next session of the council, but nothing further 
appears to have been done until September, 1704, when 
Guest moved that the rules agreed on by the county 
court should be enforced in all the courts.^ Finally in 
the following April the rules prepared by "certain per- 
sons skilled in the law" were laid before the council and 
approved,^ but not long afterwards the governor was 
notified of the repeal of the act. 

The controversy that followed between the governor 
and council on the one side and the speaker and assembly 
on the other was the first real crisis in the history of 
equity in Pennsylvania. Lasting as it did for three 
sessions of the legislature we can gather some informa- 
tion as to the respective plans submitted for the organi- 
zation of the courts, although the text of the bills has 
not come down to us. Chancery was the chief bone of 
contention. Governor Evans wished to act as chancellor 
assisted by the council, in accordance with the practice 
recently established in the crown colonies, and it would 
seem that the assembly was at first inclined to yield 
this point "provided that the court meddle not with 
matters wherein sufficient remedy may be had in any 
other court"* whether by the rules of the common law 
or the laws of the province. But the country members 
were afraid that too much of the business of the courts 



1 II Colonial Records, 115, 29, 11 mo. 1703-4. 

2 II Colonial Records, 164, 15, 7 mo. 1704. 

3 II Colonial Records, 189, 13, 2 mo. 1704-5. 
^ II Colonial Records, 263, 23, 7 mo. 1706. 



172 EARLY COURTS OF PENNSYLVANIA. 

would be drawn to Philadelphia, and after some fruit- 
less discussion the house was dismissed and the matter 
postponed until the meeting of the new assembly. This 
assembly was even more completely dominated by 
David Lloyd, the speaker, than its predecessor and re- 
plied to the bill of the governor, drawn up by the "prac- 
titioners of the law," with a "long and tedious bill"^ 
of its own which appears to have been a modified 
form of David Lloyd's act of 1701 that had been rejected 
by the Crown. The governor at once objected to the 
administration of equity by county justices who had 
previously decided the same question at law, to which 
the assembly replied that the council should devote 
their attention to public affairs and leave private causes 
to the justices — 

"That the Court of Equity as proposed by the Bill, gives no 
Colour of authority for the same persons to Judge twice of the 
same cause, for that matters of Equity being originally begun 
there, and a Clause particularly obliging them not to intermeddle 
with matters of Law in the said Courts of Equity, and our Bill 
being warranted in that point by an act of Parlia"^t which gives 
the Judges of the Common Law Power to determine matters 
of Equity in the same Sessions throughout the Dominion of 
Wales, We find no cause to Recede from what we have already 
proposed. "2 

To this the council quickly replied that it was wiser 
to follow the practice of the "others of the Queen's 
colonies" than to draw from the court of the "Marches 
of Wales, which for its inconveniency, 'tis said has been 
abrogated by act of Parliament."^ 

This aroused the ire of the Welsh Speaker and back 
came the hot reply that whoever had advised that any 

^ II Colonial Records, 266, 25, 7 mo. 1706. 

2 II Colonial Records, 280, 27, 9 mo. 1706. 

3 II Colonial Records, 282, November 28, 1706. 



EARLY COURTS OF PENNSYLVANIA. 173 

part of the law which established courts in Wales was 
abrogated gave pernicious counsel to the governor. 
Only that portion of the ordinance of Wales which gave 
the president and council chancery powers had been 
suppressed, but the settlement of chancery in the respec- 
tive counties of Wales, the foundation of the assembly's 
bill had "had constant allowance since the time of King 
Henry ye 8th." ^ 

The governor rejoined that "if there were any mistake 
in a matter that is so foreign to us as the Courts of 
Wales, it might have been hinted to the Gov^ in another 
language than calling it pernicious council," and again 
urged that the court of chancery be settled as in other 
parts of the queen's dominions .- The assembly remained 
firm and were in a fairway to win this point, but the dis- 
cussion of other features of the bill became so acrimonious 
that finally the house adjourned without passing any 
court law and the governor established the courts by an 
ordinance which, incidentally, conferred equity powers 
upon the county courts of common pleas and the supreme 
provincial court. ^ The assembly vigorously protested 
that the ordinance was illegal but no compromise could 
be effected and the courts continued to sit by authority 
of the ordinance during the remainder of Evans's admin- 
istration. 

So far as equity was concerned, the anti-proprietary 
party had achieved a distinct success and it is not a 
little curious that this was, at least in part, due to the 
fact that their leader, a W^elsh lawyer, could cite the 
courts of his native principality as a precedent for what 
he offered for adoption in Pennsylvania. Although the 

1 II Colonial Records, 288, 2, 10 mo. 1706. 

2 II Colonial Records, 295, 23, 10 mo. 1706. 

3 Charter and Laws of Pennsylvania, 319. The remonstrance 
of the Assembly will be found in II Colonial Records, 362. 
March 4, 1706-7. 



174 EARLY COURTS OF PENNSYLVANIA. 

subject is inadequately treated by text writers it would 
seem that David Lloyd's assertions were correct; that 
the court of the lord president and the council in the 
principality of Wales and the Marches had jurisdiction 
in cases of equity by force of the king's commission and 
instructions;^ that this court was abolished in 1689/ 
and that equity jurisdiction was exercised thereafter by 
the court of great sessions, the principal law court of 
Wales, which was not visited by the English judges of 
assize.^ The procedure on the equity side of this court 
was by bill, answer and demurrer in accordance with 
ordinary chancery practice, although somewhat more 
dilatory than in the high court of chancery, owing to 
the long intervals between circuit and circuit.'* The 
jurisdiction of this court was, however, not exclusive 
either at law or in equity.^ 

It is unfortunate that the early records of our courts 
have not been preserved in such a condition as to 
afford much information regarding the extent that equity 
was administered under this system, if at all. In 1710 
an "act for establishing courts of judicature" was passed, 

^ IV Coke's Institutes, 242; Pembrokeshire by Owen of 
Heullys (1603), Folio 74a, edition of 1892, page 155; History of 
Radnorshire by Rev. Jonathan Williams, 72; Archaeologia Cam- 
brensis, Vol. Ill (series 3), 29; Bacon's Law Tracts, Jurisdiction 
of the Marches. 

' I William and Mary, chapter 27. 

^ The court of great sessions was abolished by the act of I Wil- 
liam IV, chapter 70; Stephen's Commentaries on the Law of 
England (1st edition). Introduction, § 4. 

* Abbot's Jurisdiction and Practice of the Court of Great 
Sessions of Wales (1795), 94 and introduction, xxviii. 

^ Viner's Abridgment, title, Wales, D., Morgan v. , I 

Atkins' Reports, 408 (1737); Griffith v. Joanes, Choyce Cases in 
Chancery, 129 (1578); Prohibitions might issue from the King's 
Bench directed to the Court of Great Sessions, Vaughn v. Evans, 
8 Modern Reports, 374 (1725), Trantor v. Duggan, 12 Modern 
Reports. 138 (1698). 



EARLY COURTS OF PENNSYLVANIA. 175 

which conferred appellate equity jurisdiction on the 
supreme court, and original equity jurisdiction on the 
county courts of common pleas with a proviso that — 

"When matters of fact shall happen to arise upon their 
examination, or hearing of the matters and causes to be heard 
and determined in the said court, then and in every such case, 
they shall order the matter of fact to issue and trial at the 
court of common pleas, for the proper county, where the fact 
ariseth, before they proceed to sentence or decree in the said 
court of equity." ^ 

This clause was largely responsible for the repeal of 
the act by the queen in council, Lord Raymond, the 
solicitor general, having given an opinion that it would 
"make proceedings in equity insufferably dilatory and 
multiply trials at law in the plain cases to no manner 
of purpose."^ Upon notification of the repeal Governor 
Gookin revived the courts by an ordinance drafted by 
Robert Assheton which contained the substance of the 
repealed act in a more concise form.^ When the 
assembly took into consideration the reenactment of 
the court laws it was decided that separate laws should 
be passed for each of the courts and further resolved 
"that all matters of Equity, shall begin originally in 
the Provincial Court with Power to grant Injunctions 
and to have general jurisdiction over the Province."* 
What brought about this change of opinion on the part 
of David Lloyd, who was again speaker and principal 
draftsman of the acts passed in accordance with the 

1 February 28, 1710-11, II Statutes at Large, 301; Charter and 
Laws of Pennsylvania, 323. 

2 II Statutes at Large, 549, 1 Pennsylvania Archives (1st 
Series), 157. 

3 II Statutes at Large, 556; Charter and Laws of Pennsylvania, 
351; The Assembly, as usual, protested against this ordinance, 
II Colonial Records, 599, August 4, 1714. 

* II Votes of the Assembly, 161, 20, 11 mo. 1714-15. 



176 EARLY COURTS OF PENNSYLVANIA. 

resolution on May 28, 1715/ must be left to conjecture. 
Experience had perhaps taught him by this time that 
the county courts were incapable of administering formal 
equity. At any rate the county courts of common pleas 
ceased to exercise chancery powers and the perpetuation 
of the Welsh system was left to depend on the supreme 
provincial court, which received the following chancery 
powers : — 

"Section III. And be it further enacted by the authority 
aforesaid, That the said judges of the supreme court are hereby 
also authorized and enabled to hold plea in equity, by bill, 
appeal, petition or suit, to be brought or exhibited in the said 
court by, for or against any person or persons whatsoever, for 
any discovery, or other matters relievable in equity; and there- 
upon to issue out process of subpoena or distringas, and all other 
usual process for compelling the parties defendants in such suits 
to appear, put in their answers and make their defenses to such 
bills, appeals, petitions (or) suits; and for the parties to proceed 
therein and thereupon according to such rules or orders, and in 
such manner and form as the courts of chancery and exchequer 
in Great Britain have used to proceed by. 

"And upon issues joined in any of the said causes or suits in 
equity, the said court is to cause witnesses to be examined if 
desired, on either side, by commissions to be awarded for that 
purpose, or by sworn or attested examiners; and after the publi- 
cation of the depositions of the witnesses, to proceed to the 
hearing of the said causes, and upon proofs and evidences therein 
or thereupon, or upon bill and answer, where no witnesses shall 
be examined, or proofs made, to make such orders and decrees 
either for the r(elief of) the plaintiffs or for the directing any 
issue or issues at law to be (tried) for the information of the 
court, or for the dismissing of the said plaintiff's bills or other- 
wise, as the said court shall see just and reasonable, and as is 
or hath been used in the said courts of chancery or exchequer in 
Great Britain. 

"And the said court shall award such process for the enforcing 
the parties, in the said suits, to yield obedience to such orders 
or decrees as shall be made in the said causes, and in case of 
non-performance thereof, or disobedience thereto, the said 

^ III Statutes at Large, 65. 



EARLY COURTS OF PENNSYLVANIA. 177 

court shall award all such process of contempt against the per- 
sons and estates of him or them that shall be in contempt or 
refuse obedience to any of the said orders or decrees, and make 
and execute like process, orders and proceedings thereupon, as 
are and hath been used in like cases in or by the said courts of 
chancery or exchequer in Great Britain; and that the prothono- 
tary of the supreme court shall be register of the said court of 
equity." 

Unfortunately, the Act of 1715 received scant con- 
sideration from the lords commissioners of trade and 
was repealed by the king in council on July 21, 1719.^ 

The notification of the repeal of this law was received 
at a time when good feeling prevailed in the province. 
David Lloyd had been appointed chief justice and had 
ceased to be a disturbing factor, Andrew Hamilton, the 
bar leader of his time, was attorney general, while Sir 
William Keith, the governor, was at the height of his 
popularity. On May 3, 1720, the governor addressed a 
message to the assembly in which he stated that, having 
consulted gentlemen learned in the law, he was satisfied 
"that no representative body, in any of his Majesty's 
colonies, is invested with the power to erect such a 
court, or that the office of chancellor can be lawfully 
executed by any person whatsoever, except him, w^ho, 
by virtue of the great seal of England, may be under- 
stood to act as the King's representative in the place." 
On the following day the message was considered by the 
assembly and it was resolved, "that, considering the 
present circumstances of this Province, this House is of 
opinion, that, for the present, the Governor be desired 
to open and hold a court of equity tor this Province, 
with the assistance of such of his council as he shall 
think fit, except such as have heard the same cause in 
any inferior court." ^ 

1 III Statutes at Large, 439, 464. 

2 Charter and Laws of Pennsylvania, 305; II Votes of the 
Assembly, 271; III Colonial Records, 84, June 8, 1720. 



V 



178 EARLY COURTS OF PENNSYLVANIA. 

At a meeting of the council on August 6, 1720, the 
governor brought the matter to the attention of the 
members who resolved: — 

"That it is the Opinion of this Board, that by virtue of the 
Powers granted by the Royal Charter to the late Proprietor, 
his Heirs and Assigns, and to his and their Lieutents. or Depu- 
ties, being. regularly appointed, the present Govemour WiUiam 
Keith, Esqr., safely may comply with the Desire of the Repre- 
sentatives of the ffreemen of this Province, signified to him by an 
unanimous Resolution of their House, dated at Philadelphia 
the 4th day of May last, And that the holding of such a Court 
of Chancery in the manner aforesaid, may be of great Service 
to the Inhabitants of this Colony, and appears agreeable to the 
practice which has been approved of in the neighbouring Govern- 
ments. 

"But the Govemour speaking to his own want of Experience 
in Judicial Affairs, and representing to the Board the great 
Addition of Attendance and Fatigue in the public Business 
which v/ould be thereb}'- laid upon him. He was pleased to add 
nevertheless, that considering the many marks the House of 
Representatives and this Board had shewn of their Confidence 
in him in this as well as divers other respects. He should not 
decline to serve the Publick in that Station, but insisted on this, 
that as no Court of Chancery could by the method proposed be 
held without him, So that He, on the other hand, should not 
fail of having a due assistance from the Council on their parts; 
And it was thereupon, at the Governours desire, established and 
declared. 

"That as often as the Govemour is to sit in Chancery and hold 
a Court, All the members of Council in or near Philadelphia, 
shall be summoned to attend the Govemour as his assistants 
upon that Bench, and that there shall not any Decree be pro- 
nounced or made in Chancery but by the Govemour as Chan- 
cellor, with the assent and concurrence of any two or more of the 
Six eldest of the Council for the time being, And that those Six 
eldest Counsellors or assistants, or any of them, may be em- 
ployed by the Govemour as Masters in Chancer}^ as often as 
Occasion shall require. 

"And that the Inhabitants may have due notice of the said 
Court, it is ordered that A Proclamation be issued certifying 
all his Majestys Liege People of this Province, that for the 
more equal Distribution of Justice and the Conveniency of the 



EARLY COURTS OF PENNSYLVANIA. 179 

Subject, a Court of Equity or Chancery will be opened by the 
Governour, at the Court House in Philadelphia, upon the 25th 
day of this instant, August, in order to hear and judge of all 
such matters within this province, as are regularly cognizable 
before any Court of Chancery, according to the Laws and Con- 
stitutions of that part of Great Britain called England, and 
that the said Court will be always open for the Relief of the 
Subject; Whereof his Majestys Judges of the Supreme Court., 
and the Justices of the inferiour Courts, and all others whom it 
may concern are to take Notice, and to govern themselves 
accordingly."^ 

Four days later the following proclamation was made : — 

"COURT OF CHANCERY. ' 

"By William Keith Esqr. Governr Of the Province of Pen- 
si vania & Counties of New Castle, Kent & Sussex, upon Dela- 
ware. A. Proclamation. 

"Whereas Complaint has been made. That Courts of Chancery 
or Equity are absolutely necessary in the Administration of 
Justice, for mitigating in many cases the Rigour of ye Laws, 
whose Judgments are tied down to fixed and unalterable Rules, 
and for Opening away to the Right and Equity Of a Cause for 
which the Law cannot in all cases make a Sufficient Provision. 
Have notwithstanding been but toe seldom regularly held in this 
Province, in such a manner as ye aggrieved Subject might obtain 
the Relief e which by such Courts ought to be Granted. And 
Where as, the Representatives of jq Freemen of this Province 
taking ye same into Consideration, did at their last meeting 
in Assembly request me that I would with ye assistance of ye 
Council, Open and hold such a Court of Equity for this Province, ^ 
To ye end therefore that his Majesties good Subjects may no 
longer Labour under these inconveniences which are now Com-i 
plained Of, I have thought fitt, by and with the advice of the 
Council, hereby to Publish and Declare, That with their assist- 
ance I Purpose (God willing) to open and hold a Court of Chan- 
cery or Equity, for this Province of Pensil vania, at ye Court 
House of Philadelphia, on Thursday the Twenty fifth day of 
this instant August, From which Date the Said Court will be 
and remain Always Open for the Relief e of ye Subject, to hear 
and Determine all such matters arrising within the Province 

1 III Colonial Records, 100, August 6, 1720. 



180 EARLY COURTS OF PENNSYLVANIA. 

aforesd, as are regularly Cognizable before any Court of Chan- 
cery, According to ye Laws and Constitution of that part of 
Great Britain called England. And his Majesties Judges of his 
Supream Court, as well as ye Justices of the Inferior Courts, 
and all others whom it may Concern, are required to take Notice 
hereof, and to govern themselves Accordingly. Given at Phila- 
delphia, ye tenth day of August, in the Seventh year of the 
Reign of our Sovereign Lord George King of Great Britain, 
France & Ireland, Defender of the Faith S:c. Annoq. Domini 
1720. 

"God Save the King. 

"W. Keith. "1 

A few days later the assembly took into consideration 
the governor's proclamation and on the twenty-eighth 
of August extended to him their thanks for his message 
and requested that he should choose as his assistants 
those who had not heard the cases before in the inferior 
courts, to which the governor readily assented and in 
this auspicious manner was established the first and 
only separate court of chancery in Pennsylvania. When 
the common law courts were once more established by 
the Act of May 22, 1722,^ no equity jurisdiction was 
conferred upon either the supreme or county courts. 

On the twenty-fifth of August, 1720, Sir William Keith 
qualified as chancellor and appointed Charles Brockden 
registrar. James Logan and five other members of the 
council were named as masters and from time to time 
thereafter other appointments both of masters and ex- 
aminers were made. ' The proceedings of the court, 
long buried in oblivion, are not referred to in the 
reported cases, and the only allusion to them by an early 
historian is a statement by Proud that John Kinsey, 
afterwards chief justice, was compelled by Sir William 
to take off his hat when addressing the court, an act 

^ Charter and Laws of Pennsylvania, 386, II Votes of the 
Assembly, 274. 

2 II Statutes at Large, 298. 



EARLY COURTS OF PENNSYLVANIA. 181 

which brought upon the governor a remonstrance by 
the quarterly meeting of Friends.^ Thanks to the 
perseverance of WiUiam Henry Rawle, Esq., a portion 
of the records of the court were found in a folio volume 
that had lain neglected for many years among the unpub- 
lished archives of the state department and which proved 
to be the registrar's book. A critical examination of 
the cases contained in the register will be found in Mr. 
Rawle's admirable address on Equity in Pennsylvania, 
delivered before the Law Academy of Philadelphia in 
1868.^ Among the cases in which the court of chan- 
cery exercised jurisdiction were bills for account and 
for partition; to subject land to the payment of debts 
and legacies; to stay waste; to restrain proceedings at 
law; to take the testimony of witnesses in foreign parts; 
to settle differences between partners; petitions for writs 
de lunatico inquirendo , and for writs ne exeat provincia.^ 
The frequent use of the last named writ is interesting. 
Confined in its original application to cases involving 
the safety of the realm, its use had, in time, extended 
to private causes as a means of procuring equitable 
bail. The departure of a litigant out of the jurisdiction 
of the court without security for his appearance was a 
serious matter indeed in days when communication 
between Europe and America was slow and difficult. 

The case of Cole v. Wathell"^ is curious, as an applica- 
tion to chancery in an admiralty cause. The com- 
plainants, part owners of a ship, filed a petition setting 
forth that the defendant, also a part owner, had refused 
to join with them in fitting out and loading the vessel 
for a proposed voyage, that she was about to sail for the 

1 Proud 's History of Pennsylvania, Vol. II, 200. 

2 The lecture was published by the Law Academy of Phila- 
delphia in 1868 with the register as an appendix. 

^ Rawle's Equity in Pennsylvania, 26. 

■* Rawle's Equity in Pennsylvania, 38, appendix 23 (1728). 



182 EARLY COURTS OF PENNSYLVANIA. 

Barbadoes and there being no person in this govern- 
ment acting as judge of vice-admiralty, they were obHged 
to apply to the governor, as chancellor, for equitable 
relief and praying that, "according to the custom and 
usage in such cases," the chancellor would appoint 
appraisers, to value the defendant's interest, they being 
willing to 'account to him for the appraised value. The 
defendant was given time to dispose of his interest or 
join in fitting out the ship, but he left town without 
leaving any notice of what he had done or intended to 
do, whereupon an order was made appointing three 
appraisers, who filed a return valuing the defendant's 
interest at "two hundred and forty pounds current 
money of Pennsylvania." In Blad v. Bamfield,'^ Lord 
Nottingham said: "I took this occasion to show that 
the court of chancery hath always had an admiral 
jurisdiction, not only per viam appellationis, but per viam 
evocationis too, and may send for any cause out of the 
admiralty to determine it here." On several other occa- 
sions the lord chancellor asserted and enforced this con- 
current jurisdiction, which extended at least to cases of 
depredations on the sea, and has long been deemed 
obsolete, so that it is quite possible, although by no 
means certain, that a knowledge of these seventeenth 
century precedents may have induced the complainants 
in Cole v. Wathell to seek relief in chancery. 

From the minutes in the register it would appear that 
the cases did not proceed with much rapidity, in fact 
many of them were before the court for several years, 
delayed by all sorts of dilatory motions. In a partition 
case^ one of the defendants was particularly obstinate. 

1 3 Swanston's Reports, 604 (1674); Blad' s Case, 3 Swanston's 
Reports, 603 (1673); Denew v. Stock, 3 Swanston's Reports, 662 
(1677); Rex v. Carew, 3 Swanston's Reports, 699 (1682); 
Spence's Equity, Vol. I, 703. 

2 Ellis V. Ellis, Rawle's Equity in Pennsylvania, appendix, 
34. 



EARLY COURTS OF PENNSYLVANIA. 183 

Having refused to appear in response to a subpoena and 
alias subpoena, he was attached and remained in jail 
from June, 1733, to November, 1734, when counsel for 
complainants moved that the bill be taken pro confesso 
against him. He was then set at liberty and ordered 
to prepare an answer within a month, which he declined 
to do, whereupon the court proceeded to a hearing and 
entered a decree for partition and mutual conveyances. 
This he declined to obey and in the archives will be 
found the proof of service of notice on him, with his 
answer that "he had been informed that there was a 
decree against him but that he did not care."^ A writ 
of partition then issued, the nature of which is not 
explained. 

The counsel practicing most frequently in the court 
were Andrew Hamilton, Joseph Growdon, John Kinsey 
and Peter Evans. Of the cases recorded only two were 
decided by Sir William Keith, who was removed by the 
proprietors from the office of governor in 1726 after a 
quarrel with Logan. His successor, Patrick Gordon, 
upon being applied to by the parties to proceed with 
several cases before the court, hesitated to act until he 
had consulted with the council as to his authority. The 
matter was debated and the governor assured that he 
might legally assume the duties of the office, whereupon 
he took the oath as chancellor. ^ It was further pro- 
posed that rules should be drawn up for the better 
regulation of the court and the speedier dispatch of 
business, and David Lloyd, the chief justice, and Andrew 
Hamilton were named for that purpose. 

So far as can be discovered the practice in the court 
followed that of England. Suit was commenced by 
bill ; a subpoena ad respondendum then issued ; an answer 



^ I Pennsylvania Archives (1st Series), 442. 

2 III Colonial Records, 281, February 2, 1726-7. 



184 EARLY COURTS OF PENNSYLVANIA. 

or demurrer was filed by the respondents ; testimony was 
taken before examiners, or the matter referred to one 
of the masters; injunctions were issued and decrees 
enforced by attachment. On the whole, considering 
the number of years the court was in existence, the 
amount of business brought before it was small. Un- 
doubtedly the tedious and technical character of the pro- 
ceedings, their expense and the fact that the sittings of 
the court were dependent upon the convenience of the 
governor, tended to discourage litigants from seeking 
legal redress through such a channel. 

In 1736 the silent dislike with which the court was 
regarded changed into open hostility. Perhaps the con- 
tagion, if it maybe so described, spread from New York, 
where, in 1735, the general assembly had resolved that 
the court of chancery held by the governor without their 
consent was "contrary to law, unwarrantable, and of 
dangerous consequence to the liberties and properties of 
the people."^ Petitions were presented, signed by in- 
habitants of Philadelphia, Bucks and Chester counties, 
complaining to the assembly that the holding of a court 
of chancery before the governor and council was contrary 
to a clause in Penn's charter of privileges which pro- 
vided — 

"That no person or persons shall or may, at any time here- 
after, be obliged to answer any Complaint, matter or thing 
Whatsoever Relating to Property before the Govemr and Coun- 
cil, or in any other place but in the ordinary Courts of Justice, 
unless appeals thereunto shall be hereafter by Law appointed. "^ 

Even before the meeting of the assembly the subject 
had been taken up by the press and a spirited contro- 
versy had been carried on by contributors to the Mercury 



1 Smith's History of New York, Vol. II, 24. 

2 II Colonial Records, 56, 28, 8 mo. 1701. 



EARLY COURTS OF PENNSYLVANIA. l85 

and the Gazette} The assembly sent a message to the 
governor requesting information as to how the court of 
chancery was constituted,^ and on March 27, 1736, 
resolved, "That the court of chancery as it is at present 
established is contrary to the charter of privileges granted 
to the freemen of this province."^ It was then resolved 
that the justices of the county courts be given power 
to determine all suits in equity under one hundred 
pounds, that a supreme court of equity should also be 
established, to which appeals might be taken from the 
inferior courts and which should also have original juris- 
diction in all matters of equity ''prima instantia" when 
the value of the claim exceeded one hundred pounds. 
The judges of this court were to consist of three per- 
sons, to be commissioned by the governor out of any 
six that should be nominated by the house. A bill was 
framed to this effect.* 

The charge that he was violating the charter angered 
Governor Gordon and it was ordered that a vindication 
of the proceedings of the governor and council be pre- 
pared and published. Accordingly a voluminous report 
was drawn up by James Logan, giving a history of the 
establishment of the court, which, he said, was erected 
at the request of the assembly upon the best legal advice 
that could be procured, "particularly that of our then 
Attorney General, Andrew Hamilton, Esq., who was 

^ See particularly the Pennsylvania Mercury, December 18, 
1735, and the Pennsylvania Gazette, December 24, 1735. 
Thomas Penn wrote to John Penn on January 14, 1735: "The 
late newspapers have been filled with arguments for and against 
the legality of the Court of Chancery and some people whisper 
that we intend to make use of that court to recover our arrears." 
VII Pennsylvania Archives (2d Series), 166. 

2 III Colonial Records, 670, January 23, 1735-6. 

3 III Votes of the Assembly, 253. 

* III Votes of the Assembly, 258-261. 



186 EARLY COURTS OF PENNSYLVANIA. 

esteemed and allowed to be as able in that Profession 
as any on the Continent of America," — a fling at Hamil- 
ton, who as speaker of the assembly was now leading the 
opposition to the court. The report went on to argue 
that the word "property" as used in the charter had 
reference to the proprietary grants and that a court of 
chancery was an "ordinary court of justice." It con- 
cluded — 

"The Assembly however may be assured, that none of the 
Council are fond, or in the least desirous, of the Employment, 
and if the Governor shews any Inclination the Court should be 
continued on the same Foot, we are perswaded it can be from 
no other Inducement than his Desire to preserve Decency and 
Order, and some Resemblance between this Government and all 
the other British Ones in Am.erica."^ 

The assembly replied that they intended no offense 
to the governor or his council and were surprised at their 
resentment; that a vote of the house was not sufficient 
to raise a court nor was the opinion of one or more 
lawyers, who were left to answer for themselves, or the 
silence of subsequent assemblies of any consideration in 
the case; that they were sorry to see gentlemen of such 
penetration as the members of the council resigning 
away the common sense of the charter; that great men 
and even courts were often mistaken as to their own 
jurisdiction ; that it had been decided in England that a 
court of equity could not be established except b}^ act 
of parliament, and if the king could not raise such a 
court how could the deputy of the king's patentee do so ? 
They further hoped to be pardoned for saying that, in 
their opinion it would have been more reasonable if 
notice had been taken of their resolution in time to save 
them the trouble of preparing the bill relating to courts 
of equity, which had long lain before the governor un- 

1 IV Colonial Records, 27, February 16, 1735-6. 



EARLY COURTS OF PENNSYLVANIA. 187 

approved although the session of the assembly was 
drawing to a close. ^ 

Here the controversy was dropped, the assembly soon- 
after adjourned and the governor continued to act as 
chancellor until his death in the following summer. 
The matter seems to have disturbed the proprietary 
party, for a case was stated presenting all the facts and 
the opinions taken of the vSolicitor General, Sir Dudley 
Ryder, and the Attorney General, Sir John Willes, upon 
the legality of the court. They held, in effect, that the 
king had power, in erecting a new form of government 
in Pennsylvania, to authorize Penn to erect courts of 
equity and that the consent of the legislature was not 
necessary until Penn had made it so by the charter of 
1701; that the unanimous resolution of 1720 was a suffi- 
cient declaration of the assent of the legislature to the 
erection of the court, and that the court could be law- 
fully held until the whole legislature passed an act to 
the contrary.^ Nevertheless, Logan, who as president 
of the council administered the government for two 
years, probably felt that the office of chancellor was out- 
side of the scope of his temporary duties and when 
Thomas was appointed lieutenant governor, in 1738, 
the court was not revived. The proprietors were unwill- 
ing to give up the court and refer to the matter several 
times in their correspondence, "We desire," wrote 
Thomas Penn to Mr. Peters, Septemiber 28, 1751, "that 
the court of chancery may be established in a manner 
most favorable to the people, without giving up the 
king's prerogative with which we are entrusted, we 
should have some share of influence, else the trial would 
not be equal. We are willing, however, that the assem- 

1 IV Colonial Records, 41, February 21, 1735-6. The case 
cited to support their view is Stephney v. Lloyd, Croke's Reports 
(Elizabeth), 647 (1598). 

2 Appendix to Wharton's Edition of 1 Dallas's Reports, 514. 



188 EARLY COURTS OF PENNSYLVANIA. 

bly should regulate the court . " ^ Nevertheless the assem- 
bly continued its opposition until the end of the pro- 
prietary government. 

Thus, in the words of Horace Binney, Pennsylvania 
lost this system of justice because "her governors and 
representatives could not agree by whom the office 
of chancellor should be held."^ The same dispute 
occurred in the other colonies and was settled according 
to the exigencies of local politics. There is no indica- 
tion, however, of any real dislike on the part of the people 
to the principles of equity; in fact the petition from 
Bucks County against the governor's court distinctly 
demanded that some provision be made for such as 
want relief in equity, by the erection of courts of equity 
"more convenient for their attendance and less expen- 
sive to those who may have business there." While 
that from Chester County requested — 

"That some Provision suitable to the Circumstances of the 
people may be made for such as want Relief in Equity, without 
being obliged to travel from the remotest parts of the Province 
to Philadelphia, & there to attend that Court at a very great & 
heavy Expence, Which Proceedings, as the Business of that 
Court does Increase, will undoubtedly become a very great 
Grievance to the People."^ 

It has been suggested that the opposition to the court 
of chancery would not have taken concrete form but 
for the influence of Andrew Hamilton who had recently 
been one of the defendants in an important equity suit 
brought in the high court of chancery of England where 
a decree had been entered against him.* But this is 

^ Penn MSS. quoted in Shepherd's Proprietary Government 
in Pennsylvania, 395. 

2 Eulogy on Chief Justice Tilghman, 16 Sergeant & Rawle's 
Reports, 448. 

3 IV Colonial Records, 37, February 19, 1735-6. 

* III Statutes at Large, 472; VIII Pennsylvania Archives (2d 
Series), 69. 



EARLY COURTS OF PENNSYLVANIA. 189 

hardly probable. Hamilton was a man of wealth and 
influence enjoying a large practice, with a reputation for 
political independence; he had represented the pro- 
prietors in their controversy with Lord Baltimore and 
had defended the printer, Peter Zenger, in his famous 
trial at New York, and his activity was probably due to 
a desire to see the court put on a sound and popular 
basis. It is fascinating to read into history the char- 
acters of the chief actors, and particularly tempting 
when, as here, the strong personalities of such men as 
David Lloyd and Andrew Hamilton are found asserting 
themselves at the critical periods for equity in Pennsyl- 
vania. But too much may easily be made of this side 
of the story; the inhabitants were jealous of the power 
of the proprietors, they distrusted the governors and 
suspected the purposes of the Crown, they wanted cheap 
justice and demanded that it be brought to their doors, 
the very name "chancery" was odious and they would 
have none of it, while the governors and councilors, in 
their zeal for uniformity of practice in the British 
dominions, sacrificed the substance, equity, for the 
shadow, the chancellorship. 

As a man, after an amputation, makes shift as best 
he can with an artificial limb, so Pennsylvania proceeded 
slow^ly to construct a substitute for the discarded court. 
That the loss was not acutely felt, or at least realized, may 
be inferred from the fact that we hear no more on the 
subject from the legislature, where real or fancied 
grievances were then aired with greater persistency than 
in these days of unlimited appropriations and limited 
debates. The court act of 1722, previously quoted, 
conferred upon the supreme court the power to exercise 
its jurisdiction as fully as the justices of the king's 
bench, common pleas and exchequer at Westminster 
might do, and a plea might have been made for the 
exercise by the supreme court of the chancery powers 



190 EARLY COURTS OF PENNSYLVANIA. 

of the barons of the exchequer. But the ill success that 
finally attended the efforts of Governor Cosby of New 
York to maintain this position, in his celebrated suit 
against his predecessor, Rip Van Dam, would have dis- 
couraged any one from urging a view so unpopular.^ 
The orphans' court was, within its field, a court of equity, 
and, in regard to the estates of minors, exercised the 
functions of the chancellor. 

The fact that our pre-revolutionary reports are con- 
fined to the notes of a few lawyers makes it doubly diffi- 
cult to investigate the beginning of the system by which 
equitable principles were worked out through common 
law forms. The first case in w^hich the subject is men- 
tioned is Swift V. Hawkins,"^ where, in an action of debt 
on a bond, the court under the plea of payment, admitted 
evidence of want (probably a misprint for failure) of 
consideration, which, said Chief Justice Allen, was a 
necessity, to prevent a failure of justice, there being no 
court of chancery in the province; and this, he said, he 
had known to be the constant practice of the courts for 
thirty-nine years past. If the chief justice is accurately 
reported this would carry the practice back to 1729, 
before the abolition of the court of chancery, but Chief 
Justice Allen was in a position to speak with authority, 
having sat in the common pleas as early as 1732, 

In Wharton v. Morris,^ Chief Justice McKean, in 
charging the jury on the question as to w^hether a bond 
payable in "lawful current money of Pennsylvania" 
could be paid in depreciated currency, remarked that — 

"The want of a court with equitable powers, like those of 
the chancery in England, had long been felt in Pennsylvania. 
The institution of such a court, he observed, had once been 
agitated here, but the houses of assembly, antecedent to the 

^ Lamb's History of New York, Vol. I, 536, Vol. II, 54. 

2 1 Dallas's Reports, 17 (1768), 

3 1 Dallas's Reports, 125 (1785). 



EARLY COURTS OF PENNSYLVANIA. 191 

revolution, successfully opposed it; because they were appre- 
hensive of increasing, by that means, the power and influence 
of the governor, who claimed it as a right to be chancellor. For 
this reason, many inconveniences have been suffered. No ade- 
quate remedy is provided for a breach of trust; no relief can be 
obtained in cases of covenants with a penalty, &c. This defect 
of jurisdiction has necessarily obliged the court, upon such 
occasions, to refer the question to the jury, under an equitable 
and conscientious interpretation of the agreement of the parties." 

In the same year, the court of common pleas of Phila- 
delphia County in Borrow v. Kelly, ^ held that a simple 
contract debt could not be tacked to a mortgage, Presi- 
dent Judge Shippen saying, that while the courts of the 
state had in some instances adopted chancery rules to 
prevent an absolute failure of justice, there was no 
necessity in this case to usurp the powers of a court 
of chancery, an act of assembly having directed the 
mode of proceeding on mortgages and confined the 
recovery to principal and interest. 

The first statutory efforts to give relief as in equity 
were, naturally, by private acts, where the interests 
involved were sufficiently important to warrant a direct 
interference by the legislature. Among these was an 
act passed in 1757^ to enable certain testamentary 
trustees to carry out an agreement of the testator by 
the execution of deeds of conveyance; another in 1761^ 
to enable trustees to sell lands settled in trust for the 
Oxford church and with the money arising therefrom 
to purchase other lands; a third in 1772^ confirming the 
title to land where the deed had, by some accident, been 
torn and defaced, and a fourth in the same year where 
the deed had been lost.^ One act will serve as an illus- 



^ 1 Dallas's Reports, 142 (1785). 

2 September 27, 1757, V Statutes at Large, 315. 

3 March 14, 1761, VI Statutes at Large, 100. 

* March 21, 1772, VIII Statutes at Large, 245. 
^ March 21, 1772, VIII Statutes at Large, 254. 



192 EARLY COURTS OF PENNSYLVANIA. 

tration. Godfrey Brown mortgaged land in Chelten- 
ham township to the Trustees of the General Loan Office 
of the Province and subsequently conveyed to Philip 
Fox. Fox paid the mortgage and then it was found 
that two deeds in the chain of title, that had been 
pledged to the trustees according to the custom of their 
office, were lost, and, although diligent search had been 
made in the loan office and elsewhere, they could not 
be found. Therefore "to prevent the damages and 
mischiefs which may arise from the loss of the said 
deeds," on petition of Philip Fox, it was enacted that 
the grantors in said deeds and their heirs be barred 
and forever excluded from all claims to the said premises 
which should vest in the petitioner absolutely, saving 
the rights of others than the said grantors.^ 

The first legislative attempt to give equitable relief 
by a general act, was contained in the Act of January 
22, 1774,^ to compel trustees and assignees of insolvent 
debtors to execute their trusts. By this law the courts 
of common pleas were empowered, on petition, to appoint 
commissioners to audit the accounts of such trustees 
and upon their report to order the trustees to forthwith 
pay the creditors their just proportions of the funds with 
which they were charged. 

The next halting step was taken in the constitution of 
1776 which contained the following clause : — 

"The supreme court and the several courts of common pleas 
of this commonwealth shall, besides the powers usually exer- 

^ May 20, 1767, VII Statutes at Large, 122. There is an inter- 
esting act of September 29, 1781, X Statutes at Large, 366, by 
which a title was confirmed to an equitable grantee who had 
failed to get a legal title, owing to the error of a conveyancer, 
but the commonwealth had a direct interest in the case because 
the legal title had, by the error referred to, become vested in an 
attainted traitor whose lands had been forfeited. 

2 VII Statutes at Large, 382. Supplied March 24, 1818. 
7 Smith's Laws of Pennsylvania, 131. 



EARLY COURTS OF PENNSYLVANIA. 193 

cised by such courts, have the powers of a court of chancery, so 
far as relates to the perpetuating testimony, obtaining evidence 
from places not within this state, and the care of the persons 
and estates of those who are non compotes mentis, and such 
other powers as may be found necessary by future general assem- 
blies, not inconsistent with this constitution."^ 

No such other powers were conferred except by the 
Act of March 28, 1786,^ which authorized the supreme 
court upon bill setting forth the loss of deeds or other 
writings, to issue a subpoena, requiring the persons named 
to appear and answer; to refer the matter to a master 
and upon his report to make such order and decree as 
to justice and equity should appertain. This statute 
appears to have been occasioned by the frequent com- 
plaints of the loss of deeds which could only be remedied 
by private acts such as those already referred to. By 
the Act of September 28, 1789,^ proceedings akin to 
discovery were authorized in foreign attachment. The 
plaintiff after judgment against the defendant was per- 
mitted to exhibit interrogatories to the garnishees, who 
were required to answer under oath. 

On the twenty-fourth of November, 1789, there met 
at Philadelphia a convention to draft a new constitu- 
tion for the state. The members were abler and more 
representative men than those who had framed the short- 
lived constitution of 1776. The committee of nine who 
prepared the first draft of the proposed constitution 
included James Wilson, William Lewis, Alexander Addi- 

1 Chapter II, section 24 of the Constitution of 1776, Proceed- 
ings of the Constitutional Conventions of 1776 and 1790, 61; 
Act of January 28, 1777, § 4; 1 Smith's Laws of Pennsylvania, 
427. 

2 2 Smith's Laws of Pennsylvania, 375. This act was limited 
to five years, but was revived and extended to the court of 
common pleas in 1793 and made perpetual by the act of Febru- 
ary 16, 1866, P. L. 50. 

' 2 Smith's Laws of Pennsylvania, 500. 



194 EARLY COURTS OF PEXXSYLVAXIA. 

son and James Ross. The plan submitted by them 
included a high court of chancer}^ presided over by a 
chancellor with state-wide jurisdiction, and a court of 
chancery in each judicial district, or circuit, except that 
in which the high court should be held, presided over 
by the president judge of the court of common pleas 
with the same power as the chancellor except that of 
granting injunctions to stay proceedings or suspend 
judgments at law. From a decree in chancery in 
any circuit an appeal was allowed to the chancellor of 
the state. Determined opposition to this plan developed 
in the convention and after a prolonged contest in com- 
mittee of the whole, the provision for a court of chan- 
cery was struck out of the judiciary article and limited 
equity powers were conferred on the existing courts in 
the following words : — 

Art. V. Section VI. "The supreme court and the several 
courts of common pleas shall, beside the powers heretofore 
usually exercised by them, have the powers of a court of chan- 
cery so far as relates to the perpetuating of testimony, the 
obtaining of evidence from places not within the state, and the 
care of the persons and estates of those who are non compotes 
mentis. And the legislature shall vest in the said courts such 
other powers to grant relief in equity as shall be found necessary; 
and may, from time to time, enlarge or diminish those powers; 
or vest them in such other courts as the}'' shall judge proper for 
the due administration of justice."^ 

So ended the last effort to obtain a separate court of 
chancery in Pennsylvania. This much was conceded, 
the legislature was authorized not only to extend the 
equity powers of the existing courts, but to vest them 
in such other courts as they should judge proper. But 
the latter power was not exercised by the creation of a 
separate court, nor were equity powers conferred upon 

^ Proceedings of the Constitutional Conventions of 1776 and 
1790, 159, 301, 350, 354, 362, 364. 



EARLY COURTS OF PENNSYLVANIA. 195 

the ordinary courts in a systematic manner. From time 
to time, under the compulsion of sheer necessity, equi- 
table jurisdiction was extended by a series of acts the 
mere recital of which is wearisome.^ Delaware, how- 
ever, whose political and judicial history was so long 
and so intimately associated with that of Pennsylvania, 
took the step declined by her sister commonwealth and 
established a separate court of chancery by the consti- 
tution of June 12, 1792.2 

As we have seen, the constitutions of 1776 and 1790 
expressly conferred upon the courts the power to grant 
relief in certain cases. Of these, the first, the perpetua- 
tion of testimony, was exercised directly under the con- 
stitution in accordance with chancery practice; the 
second, the obtaining of evidence from places out of the 
state, by commissions and rule of court ;^ as to the 
third, the care of idiots and lunatics, the power of deter- 
mining the question of insanity was exercised through 
the medium of a commissioner and inquest according 
to chancery practice.* In addition the legislature by a 
series of acts, prior to 183G, conferred additional powers 
the most important of which were to compel trustees 
to account, to discharge and dismiss them, to compel 
the conveyance of the legal estate where the trust had 
expired, to compel discovery in aid of execution in cer- 
tain cases relating to corporations and corporate stock, 
and to compel the specific performance of a contract 

^ Troubat and Haly's Practice, chapter II. 

2 American Constitutions, 179. 

^ In Taylor v. Jolly, Supreme Court of Pennsylvania, Septem- 
ber Term, 1773, Docket 6, 365, there is a rule to take the deposi- 
tions of a witness in New Jersey "before any magistrate there," 
on three weeks' notice. 

* This practice as well as the whole subject of lunatics and 
habitual drunkards was soon afterwards regulated by the act 
of June 13, 1836, P. L. 592, and its supplements. 



196 EARLY COURTS OF PENNSYLVANIA. 

for the sale of lands, where the vendor had died, by an 
order empowering the executors or administrators to 
execute a deed.^ 

If the sum total of legislation seems meagre today, it 
can only be said that public opinion in regard to law 
reform moves slowly, and the bar, while dissatisfied 
with some features of the system, w^as not clear as to the 
direction reform should take. As will be seen presently, 
the simpler equities had been worked out through the 
common law actions and it was thought practicable to 
extend this method by the revival of neglected actions 
and an extension of their remedial effects. Such was 
the thesis maintained by Mr. Laussat in his brilliant 
essay^ and the favorable reception it received shows 
how obstinately loyal a bar may become to an inade- 
quate system that they have been taught to revere. 
These views were respected by the commissioners to 
revise the civil code when, in 1835, they took up the 
question of equity. Some of the subjects ordinarily 
dealt with in a court of chancery, such as mortgages, 
they found had been fully covered by statutes; others 
could be covered in the same manner by acts that they 
had prepared; others were within the sphere of the 
orphans' courts. It was in the peculiar means of admin- 
istering preventive justice that the courts of equity 
possessed a decided superiority over the courts of law, 
and it was here that the Pennsylvania system was most 
defective and the recommendations of the commissioners 
most radical. The commissioners were opposed to 
a separate court of chancery as unnecessary, and 
also opposed to keeping up a separate chancery 
organization in the existing tribunals. The courts, they 



^ Rawle's Equity in Pennsylvania, 61. 

2 Laussat 's Equity in Pennsylvania (1826). This essa}^ was 
prepared as a student's dissertation for the Law Academy. 



EARLY COURTS OF PENNSYLVANIA. 197 

said, had pursued certain established modes of practice 
which now for more than a century had become familiar 
to the community. "To recast the whole system then, 
to establish a class of equitable remedies for all equitable 
cases, and to confine the common law procedure to 
common law subjects," would produce, they thought, 
"greater inconveniences than any benefit which might 
be supposed in theory to arise from the change."^ Upon 
the whole, they thought that the safest plan to pursue 
was to give relief whenever possible by some familiar 
common law remedy, and when full relief could not be 
given by such process, to resort by statute to the methods 
of the chancery courts. 

Upon the recommendation of the commissioners the 
legislature extended the equity powers of the courts as 
follows in the Act of June 13, 1836:2— 

"The Supreme court, and the several courts of Common 
Pleas, shall have the jurisdiction and powers of a court of Chan- 
cery, so far as relates to — 

"I. The per[.)etuation of testimony: 

"U. The obtaining of evidence from places not within the 
state : 

"III. The care of the persons and estate of those who are non 
compos ^nentis: 

'TV. The control, removal and discharge of trustees, and the 
appointment of trustees, and the settlement of their accounts: 

"V. The supervision and control of all corporations other 
than those of a municipal character, and unincorporated societies 
or associations, and partnerships: 

"VI. The care of trust monies and property, and other 
monies and property made liable to the control of the said 
courts. 

^ Report of the Commissioners to Revise, the Civil Code on the 
Administration of Justice, January 9, 1835. 

2 § 13, P. L. 784. Article V, § 3 of the Constitution of 1874 
deprived the Supreme Court of original jurisdiction in Equity, 
except in cases of injunction where a corporation was a party 
defendant. The district court was abolished. 



198 EARLY COURTS OF PENNSYLVANIA. 

"And in such other cases, as the said courts have heretofore 
possessed such jurisdiction and powers, under the constitution 
and laws of this commonwealth. 

"And in every case in which any court as aforesaid, shall 
exercise any of the powers of a court of Chancery, the same 
shall be exercised according to the practice in equity, prescribed 
or adopted by the Supreme court of the United States, unless it 
be otherwi;?e provided by act of assembly, or the same shall 
be altered by the Supreme court of this commonwealth, by 
general rules and regulations, made and published as is herein- 
before provided; and the Supreme court when sitting in banc, 
in the city of Philadelphia, and the court of Common Pleas for 
the said city and county, shall besides the powers and juris- 
diction aforesaid, have the power and jurisdiction of courts of 
Chancery so far as relates to — 

"L The supervision and controul of partnerships, and cor- 
porations other than municipal corporations. 

"II. The care of trust monies and property, and other monies 
and propert}^ made liable to the controul of the said courts. 

"III. The discovery of facts material to a just determination 
of issues, and other questions arising or depending in the said 
courts. 

"IV. The determination of rights to property or money 
claimed by two or more persons in the hands or possession of a 
person claiming no right of property therein. 

"V. The prevention or restraint of the commission or con- 
tinuance of acts contrary to law, and prejudicial to the inter- 
ests of the community or the rights of individuals. 

"VI. The affording specific relief, when a recovery in dam- 
ages would be an inadequate remedy: Provided, That in relation 
to the discovery of facts material to a just determination of 
issues, and other questions, the District court for the city and 
county of Philadelphia, shall have the same power and authority, 
within its jurisdiction, as is hereb}^ conferred on the court of 
Common Pleas for the said cit}^ and county: And provided further, 
That no process to be issued by the said courts of the cit}' and 
county of Philadelphia, or the Supreme court sitting therein, 
under the chancery powers herein specially granted, excepting 
such as have heretofore been exercised shall at any time be 
executed beyond the limits of the city and county aforesaid." 

In conferring these powers the legislature did not 
adopt in full the recommendations of the commissioners, 



EARLY COURTS OF PENNSYLVANIA. 199 

who in the bill reported by them embraced the whole 
state as the field for the operation of chancery remedies, 
but confined a portion to Philadelphia County, yielding 
to the prejudices of the interior counties where want of 
familiarity with the forms of chancery procedure had 
created a special distaste for a change in practice. The 
unqualified success of the extension of equity jurisdiction 
in Philadelphia County led to a rapid change of opinion ; 
in twenty years the wisdom of the commission's recom- 
mendations was vindicated and the courts of common 
pleas of all the counties w^ere invested with the same 
equity powers that the courts of Philadelphia possessed.^ 
These powers had in the meantime been increased by an 
extension to all cases of fraud, accident, mistake, ac- 
count,^ discovery,^ dower and partition.* The exten- 
sion of equity jurisdiction to partition was most advan- 
tageous, since the court could upon bill determine the 
rights of the parties in a far more satisfactory manner 
than by a common law action, which would rarely be 
resorted to now were it not for the fear of the expense 
involved in a reference to a master. 

A catalogue of the statutory additions to the equity 
powers of the courts would unnecessarily prolong this 
discussion. They will be found in the digests and books 
on practice. In one important particular it became 
necessary to rectify the opinion of the commissioners 
that the remedy by scire facias sur mortgage was ade- 
quate by an extension of the equity powers of the 
common pleas to corporation mortgages. It having 
been held that the trustee named in a corporation mort- 



1 Act of February 14, 1857, P. L. 89. 

2 Acts of June 13, 1840, § 39, P. L. 671, April 16, 1845, § 3, 
P. L. 542. 

3 Act of April 10, 1848, § 4, P. L. 449. 

^ Act of March 17, 1845, § 3, P. L. 158, made general by the 
Act of July 7, 1885, § 1, P. L. 257. 



200 EARLY COURTS OF PENNSYLVANIA. 

gage could not maintain a bill to foreclose, an act was 
passed conferring this necessary power. ^ With respect 
to charities, legislation also became necessary to give 
effect in a limited extent to the doctrine of cy-pres? 

As important as any clause in the Act of 1636 was 
that which empowered the supreme court to adopt 
equity rules for the whole state which the courts of 
common pleas could neither disregard nor suspend.^ 
The power has been ^nsely exercised by the adoption of 
clear and concise rules that have operated as a check 
upon slovenly practice and furthered that uniformity 
which should characterize the administration of justice. 
In the interest of economy, regularity and certainty it is 
unfortunate that the same course has not been adopted 
in regard to actions at law. A recent act* provides that 
where a bill in equity has been filed, if the defendant 
desires to question the jurisdiction of the court, he must 
do so by demurrer or answer, explicitl}^ so stating, or 
praying for an issue; otherwise the right of trial by jury 
shall be deemed to have been waived. If the demurrer 
or answer avers that the suit should have been brought 
at law, that issue shall be decided in limine before hear- 
ing on the merits, and if the court decide that the suit 
should have been brought at law" it shall certify the 
case to the law side of the court at the cost of the plain- 
tiff. So, on appeal, if the decision of the appellate 

^ Ashurst V. Iron Company, 35 Pennsylvania Reports, 30 
(1860). Act of April 11, 1862, P. L. 477; Act of May 5, 1876, 
P. L. 123. 

2 Act of April 26, 1855, P. L. 331. 

3 Chester Traction Co. v. Philadelphia W.8c B. R. Co., 180 
Pennsylvania Reports, 432 (1897). 

^ June 7, 1907, P. L. 440; Naomi Coal Co. v. Moore, 18 Penn- 
sylvania District Reports, 616 (1908); Harton v. Hildehrand, 
57 Pittsburg Legal Journal, 129 (1909); Kingston Coal Co. v. 
Coal Company, 14 Luzerne Legal Register, 267 (1909). 



EARLY COURTS OF PENNSYLVANIA. 201 

court is that the suit should have been brought at law it 
shall remit the cause with directions to transfer it to the 
law side of the court. 

It is necessary to say something in reference to the 
nature of the equitable relief administered through 
common law forms, a subject of unusual interest inas- 
much as it has had a profound influence upon the develop- 
ment of legal procedure in the commonwealth. Inde- 
pendently of the form of action, it has been said, "our 
courts will advance the equitable rights of plaintiffs, 
where, through some accident that occurred anterior 
to the institution of his suit, or that happens during its 
pendency his common law remedy would be taken away 
or rendered nugatory."^ An early case illustrating this 
principle is Respuhlica v. Coates,^ an action of debt on a 
bond brought in the supreme court against the defend- 
ant as surety. Levy, for the plaintiff, moved for a rule 
to show cause why the declaration should not be amended 
by striking out the profert and averring the loss of the 
obligation. Lewis and Sergeant, for the defendant, de- 
clared that they would not object to the rule being made 
absolute, as they apprehended a late authority had 
settled the practice in England.^ The court made the 
rule absolute, declaring that it was absolutely necessary 
such practice should be adopted here to prevent a 
failure of justice, there being no court of chancery to 
protect against such accident. 

The common law actions that were made the vehicles 
of equitable rights were assumpsit, debt, covenant, 
replevin, ejectment and partition; in fact nearly all the 
personal actions have been employed to support equitable 



^ Troubat and Haly's Practice (edition of 1837), 55. 

2 1 Yeates's Reports, 2 (1791). 

^ Read v. Brookman, 3 Term Reports (1789), where it was held 
by a majority of the court that a deed might be pleaded as lost 
without a profert. 



202 EARLY COURTS OF PENNSYLVANIA. 

claims. "I do not like the idea," said Mr. Justice 
Huston, "that our equitable powers are more extensive 
in one form of action than another."^ Assumpsit is an 
equitable action and lies, according to the familiar 
phrase, in all cases where the defendant has money 
which ex cBquo et bono belongs to the plaintiff.^ Thus 
where there had been a recovery in ejectment against 
tenants and the landlord died, it was held indebitatus 
assumpsit would lie against the landlord's executors to 
recover rents received, from the time the plaintiffs' title 
accrued, as a substitute for a bill in equity, and the 
question was submitted to the jury as to whether *the 
defendant's testator had misrepresented their title to 
the plaintiffs and concealed the defects in his own.^ 

An illustration of the free use of the equitable 
powers of the court will be found in Bixler v. Kiinkle,'^ 
an action of assumpsit for money had and received by 
the defendants to the use of the plaintiff. It appeared 
that plaintiff's father had by his will directed his execu- 
tors to lay out a certain sum in land for the plaintiff's 
separate use and that the executors had procured a 
release from her by fraud on payment of about one half 
of what was due. Judgment was entered for the plain- 
tiff, the money to be paid into court and expended under 
the court's direction in the purchase of land according 
to the will. Chief Justice Gibson, however, thought 
that the judgment exceeded the powers of the court, 
although jurisdiction to decree a trust would be most 
salutary. 

So also, where by articles of agreement for the sale of 
land a deed was to have been dehvered on a certain 



1 Pidcock V. Bye, 3 Rawle's Reports, 183 (1831) at page 195. 

2 See the cases collected in Pepper and Lewis's Digest of Deci- 
sions, Vol. II, col. 1632. 

3 Haldane v. Fisher, 1 Yeates's Reports, 121 (1792). 

4 17 Sergeant & Rawle's Reports, 298 (1828). 



EARLY COURTS OF PENNSYLVANIA. 203 

date, and in covenant on the articles it appeared that 
it had been verbally agreed that delivery should take 
place on a subsequent date, Chief Justice Tilghman was 
of the opinion that the action could have been supported 
if the declaration had been amended so as to set forth 
the alteration of the agreement. "I see," he said, "no 
certain mode of doing equity to both parties, but by 
issuing a writ of covenant in the usual form and per- 
mitting the declaration to partake so much of the nature 
of a bill of equity as to set forth the truth of the case. 
To this the defendant may plead anything which in 
law or equity will serve him, and thus the parties may 
go to trial on the merits of the case." And Mr. Justice 
Gibson added: "The declaration is in effect a bill in 
equity; for in England the plaintiff could not recover in 
a court of law: I cannot, therefore, see why those equi- 
table circumstances that are the very foundation of 
the action, should not be set forth. Performance by 
the plaintiff at a subsequent day, and acceptance by the 
defendant, is in equity equivalent to performance 
strictly at the day, and ought to have been alleged here. 
Principles of equity cannot be administered through 
common law forms, strictly such, without having re- 
course to fiction, which leads to serious inconvenience. 
The facts as they exist ought, in all cases where it is 
practicable, to be set forth. "^ 

Replevin had from the earliest times a wider scope 
than in England, being applicable in every case in which 
goods and chattels in the possession of one person were 
claimed by another.^ So too, in partition an equitable 
estate was held sufficient to support the action, as in 



^ Jordan v. Cooper, 3 Sergeant & Rawle's Reports, 564 (1818). 
For an action of debt see Huber v. Burke, 11 Sergeant & Rawle's 
Reports, 238 (1824). 

2 Weaver v. Lawrence, 1 Dallas's Reports, 156 (1785). 



204 EARLY COURTS OF PENNSYLVANIA. 

Stewart v. Brown,^ where it was held that if a persor 
purchase land at a tax sale under an agreement that 
another should be equally concerned, he would be con- 
sidered as holding for the plaintiff and himself as tenants 
in common. The technical and nearly obsolete action 
of account render was frequently resorted to as a sub- 
stitute for' the bill in equity for an account. The action 
of ejectment became at an early date, through the 
ingenuity of the courts, the most important mode of 
enforcing the equity of a plaintiff in real property. In 
Hawthorn v. Bronson,^ it is thus described by Mr. 
Justice Duncan: — 

"The equitable action of ejectment, in this state, forms a 
considerable branch of the law. From the nature of our original 
titles, settlement-rights, warrants and applications, all imper- 
fect rights, so variant in their circumstances from other coun- 
tries, our courts of justice have been obliged to form a system 
of laws adapted to this specier. of title, and accommodated to 
all its circumstances, and which, perhaps, could not, after all 
our experience, be changed to advantage; and which, indeed, 
ought not to be changed, however specious the reason might be, 
as it would tend to destroy all security of title, and introduce 
new confusion, which nothing but a steady adherence to deci- 
sions can prevent. And when to this is added, that in general, 
the people contract by articles for payment by instalments, 
and the legal title is seldom made, until all the purchase-money 
is paid, and the frequent essignment of these articles, we ought 
not to be surprised at the numerous complicated cafes which 
arise in our courts of law and equity; for they are courts of law 
and equity distributing justice by the same medium — ^the instru- 
mentality of a jur3^ In Pennsylvania, equity is law. Courts 
give the equitable principles to the jury, as they lay down the 
legal principles. The facts are for the decision of the jury, as 
all contested facts must be; but whether, on any state of facts 
found by the jury, the party is entitled to equity, and the mode, 
manner and extent of relief, is for the court." 



1 2 Sergeant & Rawle's Reports, 461 (1816). 

2 16 Sergeant & Rawle's Reports, 269 (1827). 



EARLY COURTS OF PENNSYLVANIA. 205 

Wherever chancery would enforce specifically a con- 
tract for the sale of land, it is said, the same relief will be 
granted in Pennsylvania by ejectment.^ Thus eject- 
ment lies by the vendor against the vendee in possession 
under articles who has paid part of the purchase money 
and defaulted on the remainder.^ So also by the vendee, 
upon tendering the purchase money. ^ Difficulties were 
encountered, as might be expected, in cases involving a 
construction of the statute of frauds which are too tech- 
nical for discussion here.* 

The interest of the assignee of a chose in actio^;! was 
also recognized and protected in actions at law, and on 
the other hand, the assignee made liable to set-offs and 
costs in the same manner as if the suit had been insti- 
tuted in his own name. The practice which prevailed 
from a time antedating the Revolution was to bring the 
suit in the name of the assignor and mark it to the use 
of the assignee.^ 

It was a somewhat simpler matter to give effect to the 
equities of a defendant, since this did not involve an 
extension of the scope of common law writs or the revival 
of obsolete actions as substitutes for chancery proce- 
dure. The rules of pleading and evidence interposed 
the chief barrier to the admission of equitable defenses 

^ Laussat's Equity in Pennsylvania, Troubat and Haly's 
Practice, chapter on Ejectment. 

2 Mitchell V. De Roche, 1 Yeates's Reports, 12 (1791). 

3 Hawnv. Norris, 4 Binney's Reports, 77 (1811). 

* The Pennsylvania Statute of Frauds, Act of March 21, 
1772, 1 Smith's Laws of Pennsylvania, 389, omitted the fourth 
section of the Act of 29, Charles II, chapter 3, making it possible 
to bring an action for damages for breach of parol contracts 
relating to land. Wilson v. Clarke, 1 Watts & Sergeant's Re- 
ports, 554 (1841). Lewis's Cases on Specific Performance, 128. 
Pepper and Lewis's Digest of Decisions, Vol. 20, col. 34592. 

^ McCullum v. Coxe, 1 Dallas's Reports, 150 (1785). Wheeler v. 
Hughes, 1 Dallas's Reports, 23 (1776). 



206 EARLY COURTS OF PENNSYLVANIA. 

and these were broken down at an early period. And 
whatever may be said as to the insufficiency of the 
remedies afforded to a plaintiff, it must be admitted, as 
observed by Mr. Rawle,^ that the protection given to a 
defendant in Pennsylvania was in advance of the law 
as elsev\^here administered. There were two ways in 
which it was possible to present the equity of a defend- 
ant, first by giving evidence of equitable matter, under 
a general plea, and second, w^here from the nature 
of the case it was improper to make a defense under a 
general plea by pleading specially the facts constituting 
the equitable grounds of defense. ^ 

The first reported case describing the practice of giving 
in evidence, under the plea of payment, matters of equi- 
table defense is Swift v. Hawkins^ already referred to, 
"the Magna Charta," says Mr. Justice Duncan, "of this 
branch of equity."* Seven years later, in 1775, the 
supreme court, to prevent surprise at trials, adopted a 
rule that every person, intending to give special matter 
in evidence under the general issue, must give notice in 
writing ten days before trial of the special facts he in- 
tended to rely on and, because it had been adjudged 
that under the plea of payment the defendant might 
give evidence that a bond or specialty was given "with- 
out any or good consideration," for the future in all 
such cases, the defendant should thirty days before trial 
give notice in writing of his intention to offer such evi- 



^ Rawle's Equity in Pennsylvania, 63. 

^ Laussat's Equity in Pennsylvania, 66. Of the second class 
of cases, Pollard v. Shaffer, 1 Dallas's Reports, 210 (1787), is an 
example. 

3 1 Dallas's Reports, 17 (1768). 

* Mackey v. Brownfield, 13 Sergeant & Rawle's Reports, 240 
(1825). 



EARLY COURTS OF PENNSYLVANIA. 207 

dence.^ From that day every practicing attorney in 
Pennsylvania has, at some time in his career, started 
from his sleep in the middle of the night in a cold sweat, 
wondering if he did give notice in that case on tomorrow's 
list. 

Where an equitable defense is set up under the plea 
of payment with notice of special matter, the plea is a 
substitute for a bill in equity, and under it the jury may 
and should presume everything to have been paid which 
in equity and good conscience the defendant ought not 
to be compelled to pay. The nature of the plea, says 
Chief Justice Gibson,^ has frequently been misunder- 
stood. It is not the general issue. As an equitable 
plea it makes room only for what would sustain a bill 
in chancery, and as a legal plea it makes room only for 
evidence of direct payment, or what is the equivalent 
of payment where the plea is directed by act of assembly. 
The various equitable defenses permitted under the 
plea may be classed under the famihar heads of fraud, 
accident, mistake, and failure of consideration.^ The 
same liberality as to evidence was not favored under 
the plea of non assumpsit. It was said by Chief Justice 
Tilghman* that if the circumstances afforded grounds 
for relief in equity, the defendant should give notice 
of special matter under the plea of payment. 

In the action of covenant, the plea of performance, or 
covenants performed, almost obsolete in England, was, 

^ Rule of Supreme Court of Pennsylvania, April 10, 1775, 
Docket No. 7, page 291. Section 7 of the procedure act of May 
25, 1887, P. L. 271, provides: "The pleadings in all courts to be 
subject to the rules of the respective courts as to notice of special 
matter." 

2 Lewis V. Morgan, 11 Sergeant & Rawle's Reports, 234 (1823). 
Compare Hollingsworth v. Ogle, 1 Dallas's Reports, 257 (1788). 

3 Pepper and Lewis's Digest of Decisions, Vol. 16, col. 27376. 
^Dunlap V. Miles, 4 Yeates's Reports, 366 (1807). 



208 EARLY COURTS OF PENNSYLVANIA. 

with notice of special matter held sufficient to support 
any evidence which would discharge the defendant in 
equity.^ In ejectment an equitable defense would pro- 
tect the defendant's possession, but by statute^ the plea 
of "not guilty" was the only one allowed. There was 
also permitted, in addition to the statutory set-off, an 
equitable defense in the nature of set-off applicable to 
acts of nonfeasance or misfeasance by the plaintiff 
connected with his cause of action, not matter of defal- 
cation but directed to the defeat of the claim in whole 
or part. As to replications and subsequent pleadings, 
if a plea was put in founded in equity the plaintiff was 
permitted in reply to set up any special facts sufficient 
to destroy that equity.^ 

Another powerful instrument in the administration of 
equity under common law forms was the conditional 
verdict frequently used as a substitute for an injunction 
or a bill for specific performance. In such a case, where 
the plaintiff had set out in his declaration the whole 
ground of his equitable right, the jury under the direc- 
tion of the court might find large damages to be released 
on condition of compliance with the terms prescribed 
by the verdict, which terms were for the jury alone to 
impose. '^ So also the power of the court to control or 
open judgments has been exercised according to equi- 
table principles and with a view to preventing injustice 
under color of law^ 

Such then is the system which Horace Binney con- 
temptuously described as "a spurious equity compounded 



^ Bender v. Fromberger, 4. Dallas's Reports, 436 (1806). 

2 Act of April 13, 1807, 4 Smith's Laws of Pennsylvania, 476. 

3 McCutchen v. Nigh, 10 Sergeant & Rawle's Reports, 344 
(1823). 

^ Clyde V. Clyde, 1 Yeates's Reports, 92 (1791); Decamp v. 
Feay, 5 Sergeant & Rawle's Reports, 323; Aloyer v. German- 
town Railroad Co., 3 Watts & Sergeant's Reports, 91 (1841). 



EARLY COURTS OF PENNSYLVANIA. 209 

of the temper of the judge and the feehngs of the jury, 
with nothing but a strong infusion of integrity to prevent 
it from becoming as much the bane of personal security 
as it was the bane of science."^ The early bar, however, 
regarded it much as a mother does a deformed child; 
they loved it, they doctored it and resented reflections 
upon its symmetry and efficiency.^ Extravagant notions 
were at one time entertained as to the possibility of 
extending the system by the employment of long for- 
gotten actions, such as the assize of nuisance,^ and by 
widening the scope of the writ of scire facias ^ As has 
been shown, more sensible counsel prevailed and limited 
chancery powers were extended to the courts by vStatute. 
If the court of chancery had been excluded in the 
eighteenth century from our system of justice as the 
first step in a movement for the scientific reform of pro- 
cedure, the result might have been far-reaching. But it 
was not. Political considerations dictated the change 
and the best legal opinion of the day was adverse to the 
innovation. Anglo-American jurisprudence was founded 
on the inherited conception of a dual system, law and 
equity, each with its distinct functions. The excision 
of equity crippled and paralysed the administration of 
justice. Having destroyed chancery forms, the next 
logical step should have been to abolish all distinctions 
betw^een common law forms and substitute one simple 

^ Eulogy on Chief Justice Tilghman, 16 Sergeant & Rawle's 
Reports, 448; Gochenatter v. Cooker, 8 Sergeant & Rawle's 
Reports, 187 (1822), Gibson, J., at page 192. 

^ Opinion of Chief Justice Black in Finley v. Aitken, 1 Grant's 
Reports (Pa.), 83 (1854), at page 95. 

3 Livezey v. Gorgas, 2 Binney's Reports, 192 (1809). The rec- 
ord of the trial will be found in Brackenridge's Law Miscellanies, 
438. See also Barnet v. Ihrie, 17 Sergeant & Rawle's Reports, 
174 (1828). 

* Laussat's Equity in Pennsylvania, 136. 



210 EARLY COURTS OF PENNSYLVANIA. 

method of proceeding, under which equity and law aHke 
could be administered. But such a conception was in 
advance of the times. Instead, from time to time under 
the pressure of necessity, efforts were made to admin- 
ister equitable principles through forms that even for 
their own legitimate purposes were fast becoming 
archaic.. The result was to create a new series of tech- 
nicalities requiring a glossary of their own. When 
chancery powers were conferred upon the courts, the 
fact that relief was given in common law forms might 
have presented an obstacle to the exercise of equity 
jurisdiction in many instances, had not the courts, by a 
liberal construction of the acts conferring such juris- 
diction, insisted that it was not sufficient to oust the 
jurisdiction of equity that complainant had a remedy at 
law, unless that remedy was as complete, adequate, 
practical, efficient and convenient to the ends of justice 
as that in equity. Nevertheless there are cases where 
the distinction is still far from clear, a situation that 
would be ridiculous were it not so serious to prospective 
litigants. 

Another disadvantage that attended the system was 
that the equities of the respective parties were to a large 
extent left to the chance decision of a jury, which is 
more likely to be guided by sympathy or prejudice than 
the law of the case, or, with the best intentions in the 
world, is an unsatisfactory tribunal for the determination 
of complicated questions of fact. No doubt this is one 
reason for the great number of references to arbitrators 
to be found on the early dockets. 

It is true that for purely defensive purposes the 
system had decided advantages. It permitted a defend- 
ant to put in an equitable defense without resorting to 
another jurisdiction for relief. But on the offensive it 
broke down. The common law offered no adequate 
substitute for the bill for an injunction, to enforce 



EARLY COURTS OF PENNSYLVANIA. 211 

specific performance of contracts, to reform or cancel 
instruments, to obtain a receiver, for the bill quia timet 
and the bill of peace. Present social and commercial 
conditions tend to increase rather than diminish the 
importance of equity jurisdiction. Such matters as 
trade-marks, copyrights and patents; corporations, asso- 
ciations and trusts; trade disputes and interstate com- 
merce, present problems that would seem almost incapa- 
ble of solution except through chancery procedure, either 
in its original form or as assimilated by code practice, 
without a revolutionary reconstruction of the entire 
legal system. 

Some reformation of our procedure belongs to the 
future. Of that we may be certain. It is impossible 
to imagine that our technical and complicated practice 
will not fall some day of its own weight and be replaced 
by a procedure clearer, simpler and more scientific. In 
that golden age, when the practice of law will be a pleas- 
ant diversion and the bringing of a suit the opening bar 
of a symphony, if one of our learned profession now living 
is permitted, as a shade, to revisit the scene of his earthly 
struggles, he will be able, perhaps, to recognize traces 
of equity procedure, but the common law actions will 
belong as completely to the past as himself, or, to put it 
more humanely, as the actio sacramenti of the Roman 
or the weregeld of the Saxon. 



CHAPTER V. 

In the preceding pages brief references were made to 
the register's court and orphans' court. The rise of the 
latter tribunal from a humble beginning to its present 
important position is sufficiently interesting to warrant 
a more detailed account of its functions and growi:h. 
However unobtrusively the work of its judges may be 
performed, it should not be permitted to escape atten- 
tion, for, as Judge Duncan grimly puts it, "as sure as 
we descend into our graves, so sure into this court we 
must come."^ 

During the American colonial period the settlement 
of the estates of decedents belonged, in England, prin- 
cipally to the ecclesiastical courts. Briefly, the terri- 
tory of England was divided into two provinces, Canter- 
bury and York, each presided over by an archbishop or 
metropolitan. Each of the provinces was divided into 
dioceses. With exceptions, which it is unnecessary to 
particularize here,- the bishop of the diocese where the 
decedent had his last domicile had the power to appoint 
the administrator and settle his accounts, and where 
there was a will, it was proved before him and letters 
testamentary issued thereon. When so acting, he was 
called the "ordinary" and held what was called the 
"consistory court," either in person or by a deputy 
styled his commissary. From this court an appeal 
would lie to that of the archbishop and thence to the 
king in chancery, that is, to the "court of delegates," 
appointed by the king's commission under the great 
seal. 



^ McPherson v. Cunliff, 11 Sergeant & Rawle's Reports, 431 
(1824). 

2 Williams on Executors, Part I, Book 4, chapter 1. 



EARLY COURTS OF PENNSYLVANIA. 213 

Here and there were districts called "peculiars," ex- 
empt from the jurisdiction of the ordinary and subject 
to the metropolitan only. The court of appeal of the 
Archbishop of Canterbury was called the Court of the 
Arches, because formerly held in the church of Saint 
Mary le bow {Sancta Maria de arcubus), and was pre- 
sided over by the "dean of the arches." If the decedent 
left bona notabilia or chattels to the value of one hun- 
dred shillings in two different dioceses or jurisdictions, 
then probate or administration belonged to the arch- 
bishop, by way of special prerogative, and the matter 
was cognizable in the ' prerogative court" before a judge 
appointed by the archbishop . ^ 

Such a system was wholly impractical in America, 
where the principle of an established church, even in 
the most loyal colonies, never gained more than a pre- 
carious foothold. It would have met with the opposi- 
tion not only of the many sects into which the emi- 
grants were divided, but also with that, probably, of the 
common lawyers, whose jealousy of the canonists and 
civilians was then at its height. But the feeling that 
probate and administration were something separate 
and apart from the common law was sufficiently strong 
in most of the colonies to lead to the creation of separate 
tribunals for the exercise of jurisdiction over decedents' 
estates, and to the retention of, at least, a supervision 
over such matters by the governor and council.^ By a 
law of the colony at Plymouth of 1633 wills were to be 
probated before the governor and council,^ while in 
Maryland in the records of the court held at St. Mary's 
by the proprietor and his council, beginning 1637, are 

1 Blackstone's Commentaries, Vol. II, 590, Vol. Ill, 64. 
^Article on Wills by L. M. Dagget in Two Centuries' Growth 
of American Law, 167. 

3 Laws of the Colony of New Plymouth (Edition of 1836), 32. 



214 EARLY COURTS OF PENNSYLVANIA. 

many instances of the grant of probate or administra- 
tion as well as of the settlement of executors' accounts.^ 
In the Massachusetts Colony probate of wills was to be 
made at the county court, but by an act of 1652 two 
magistrates with the recorder or clerk of the county 
court meeting together were authorized to allow wills 
and grant administration, reporting to the county court. ^ 
The charter of 1692 made the governor and council a 
court of probate, although these officials seem to have 
exercised their jurisdiction through the county judges, 
with an appeal reserved to the governor and council as a 
supreme court of probate. 

As we have previously seen, the Duke of York's laws 
for the government of New York were in 1676 put in 
force in the settlements on the Delaware by Governor 
Andros. These laws contained minute provisions for 
the care of the property of decedents. Upon the death 
of any person it was made the duty of the constable 
with two overseers of the parish to "repair to the house 
of the deceased party to enquire after the manner of his 
death and of his will and testament and in case none 
doth appear or shall be produced, it may be taken for 
granted that the person died intestate," whereupon 
security was to be taken for the care of the estate until 
the next court of sessions, where all cases of probate and 
administration were to be adjudged. Administration 
was to be granted to the widow or children upon the 
entry of security and an inventory filed. 

"But in case the deceased Dye without widow or Child, 
then the estate, for the better improvement thereof shall be 
sould by order of the Court at an Outcry, and the purchasers 
all puting Security, and Acknowledging Judgment for their 
debt which by the Court shall be Assigned to the several Creditors 

^ Maryland Archives, Judicial and Testamentary Business of 
the Provincial Court, 12. 

2 Laws of the Colony of Massachusetts (1672), 157. 



EARLY COURTS OF PENNSYLVANIA. 215 

of the decendant, and paid according to the priority of Law 
and the Surplusage remaining, if any, to be delivered to the 
next kinsman of the descendant, if he appears or if none prove 
himself such within one year and six week, Then the Court to 
give an accompt of the said Surplusage to the Govemour. And 
when the widow or Child Administers the surplusage after debts 
paid and the funerall Charges according to the quality of the 
person allowed for, shall be equally divided between the Widow 
and Children, viz. one third of the personall Estate to the 
widow and the other two thirds amongst the Children, provided 
the Eldest Sonne shall have a double portion, and where there 
are no Sonnes the daughters shall Inherit as Copartners, and 
if any of the Children shall happen to dye before it come to 
age his portion shall be divided amongst the surviving Children. 

"If any person shall renounce his Executorship or that 
none of the friends or kindred of the deceased party that shall 
die intestate shall seeke for Administration of such persons 
Estate, then the Constable of the Town where any such person 
shall die, shall give notice thereof to the next Court of Sessions; 
that so the Court may take order therein, as they shall think 
meet, who shall also allow such Constable due recompence for 
his pains But if the Constable shall fail therein, he shall forfeit 
forty Shillings to the publigue Treasury. 

"That the Clarke of the sessions when he carries the Probates 
or Commissions of Administration to be signed do then also 
Certify unto the recorders Office at New York, the name of 
the testator or the party deceased the Executors or Adminis- 
trators and their Security, the County and Parrish where they 
dwelt And the Court wherein the Administration is granted to 
the end that strangers and other Creditors invested in the 
Estate may be the better Enabled to find out the Records in 
which the accompts of the estate is entered and be informed 
how they may come to their just dues."^ 

Executors failing to probate wills and persons inter- 
meddling with the goods of a decedent were made liable 
for the debts of the decedent whether the estate was 
sufficient for that purpose or not. 

The conferring of probate jurisdiction upon the courts 
of sessions is an indication of New England influence in 



^ Charter and Laws of Pennsylvania, 5, 6. 



216 EARLY COURTS OF PENNSYLVANIA. 

the framing of the laws. About 1686 instructions from 
the home government reserved to the governor the 
probate of wills, after which the governor or the secre- 
tary of the province exercised this jurisdiction, and a 
department grew up in the secretary's office known as 
the prerogative court, whose jurisdiction was exercised 
in minor matters by local delegates. The prerogative 
court was not succeeded by a court of probate until 1778. 
In the territories on the Delaware the ordinance of 

1676, putting in force the Duke of York's laws, did not 
expressly concede to the local courts the right to grant 
administration or probate wiUs, and such matters were 
in the hands of the authorities at the seat of government. 
A case in New Castle against a deceased person was on 
April 4, 1677, continued until the "letter of administra- 
tion bee come from New York."^ Prior to this, the 
justices of the court at New Castle, in a letter to Governor 
Andros, dated February 8, 1677, giving an account ol 
local affairs, made the following request: — 

"That yoT* Honor will bee pleased see far to Impower the 
Commander Capt" John Colier or the Court that wills may bee 
proved before them and Letters of Administracon granted 
accordingly w^h ye fees for the estates of the most part of the 
People in these parts are so Inconciderable that otherwyse 
the Charges & Expenses of going to yo^ hono^ Att New Yorke 
for to obtaine the same may Prove mutch to the hinderance of 
such Estates. "2 

To which the governor replied in a letter dated April 6, 

1677, and read at the court held June 8, 1677: — 

"The severall Co^^s May att a session take proofes and security 
and grant administracon of wills but if above twenty pounds 
to remit the same here to the secretary's office to bee recorded."^ 

^ Records of the Court of New Castle, 74. 

2 Records of the Court of New Castle, 66. 

3 Records of the Court of New Castle, 98. 



EARLY COURTS OF PENNSYLVANIA. 217 

The court availed itself of this permission at once and 
several wills were proved at this term of court. The 
procedure in one case will serve as an illustration. 
Rebecca Eghberts, widow of Barent Eghberts, deceased, 
produced the will of her husband dated October 20, 
1674. The two witnesses swore that they were present 
and saw the testator sign the will. The court then 
granted "administration" according to' the will and 
directed that it be recorded. In other estates, where 
the decedents died intestate, administration in the 
proper sense was granted. 

Under the power conferred upon William Penn in the 
charter of Pennsylvania, to appoint judges, magistrates 
and other officers, it was provided in the laws agreed 
upon in England that there should be a register for 
births, marriages, burials, wills and letters of administra- 
tion distinct from the office for enrolling deeds. ^ This 
provision was incorporated in the "Great Law" or body 
of laws passed at Upland, December 7, 1682, ^ and 
Christopher Taylor was appointed Register General for 
the province and territories. The register general kept 
his office at Philadelphia and commissioned deputies 
to act in the respective counties. Taylor, according to 
Proud, ^ was a well educated Yorkshireman, an eminent 
Quaker preacher and the author of several tracts in 
defense of their principles. He was also a member of 
the first provincial council, but did not live long to enjoy 
his honors, dying in the early part of 1686. His own 
will is No. 26 on the register. 

The first will on record is that of Thomas Fream, 
proved, apparently, October 10, 1682. Wills and adminis- 
trations were kept in separate volumes, as is still the 

^ Charter and Laws of Pennsylvania, 101. 
^ Charter and Laws of Pennsylvania, 119. 
3 Proud's History of Pennsylvania, Vol. I, 236. 



218 EARLY COURTS OF PEXNSYLVAXIA. 

practice. The first entries are brief and informal and it 
probably took some time to settle the forms and practice 
of the office. The following entry -^-ill serve as an ex- 
ample : — 

"Philadelphia in the Province of Pennsylvania 2 ^ 1G83. 

"Wheras Mary Mason Relict of the deceased, John Mason 
did the day of the date thereof appear before me, Christopher 
Ta^dor, Register Gen^^ of the said Province, &c. desiring to 
take out Letters of Administration upon the estate of the said 
John Mason and having given in and attested an Inventory of 
the said estate with sufficient security to pay his debts and 
dispose of the remainder according to law I do by virtue of my 
Commission from William Penn, Proprietary and Govemr of the 
said Province and Territories grant Letters of Administration 
to the said Mary Mason for the ends and purposes aforesaid. 
Under my hand and the seal of my office. 

"Christopher Taylor, 

"Regist. Genii (SEAL)" 

William Clark, the deputy register for Kent and 
Sussex counties, had served as a justice in the court at 
the Whorekills under the previous government and 
became chief justice of the provincial court in 1703. 
One of his entries is as follows: — 

"Whereas William Damall of the County of Kent, Marchant, 
did the day of the date hereof appeare before me, William 
Clark, deputy Register of the Countys of Sussex and Kent in 
the territories of the Provience of Pensilvania; and desireth 
as princable Creditor to take out Letters of Administracon 
upon the estate of Andrew Stocker, deceased, And haveing 
Given me Good and sufficient securiety to bring in unto me a 
true inventory of the estate that the said Andrew Stocker dyd 
possessed of within one moneth after the date hereof soe fer 
as the same shall com to his knowlidge And also to pay his debts 
soe fer as the Estate will extend and dispose of the Remayner 
According to Law, I doe therefor by the authority of William 
Penn, Proprietary and Govern^ of the Provience of Pensilvania 
and the Territories thereunto belonging & by commicon from 
Christopher Taylor, Register General of the pro\'ience of Pen- 



EARLY COURTS OF PENNSYLVANIA. 219 

silvania and the Counties of Sussex and Kent Grant Letters 
of Administracon to the said William Darnall for the ends and 
purposes A for said. Given under my hand and seale of my 
office the 18th da}^ of ™- In the year of our Lord according to 
the English account 1683. 

"William Clark."! 

In the same volume are recorded inventories of estates 
as well as records of births, deaths and marriages. The 
following is curious : — 

"These are to give notice unto all persons whatsoever that 
there is a Marriage shortly intended to be solmonized Betwene 
Abraham Westron, widdower, and Mary Smith, widdow, if any 
person have an3rthing justly to object wherefor the said parties 
should not be Joyned together in marriage Let them Give in 
there Exceptions unto me to the end that the same may be 
prevented or elce forever after to be silant in that case, dated 
at Lewis the 5 day of the ^ 1683. WilHam Clark." 

During its existence the office of register general was 
held by men of importance, including Governors Black- 
well, Markham, Evans and Gookin, who probably kept it 
themselves on account of the fees, while among the 
deputy registers were Patrick Robinson and David 
Lloyd whose activities in political and legal affairs have 
been referred to before. 

The duties of the register general and his deputies 
were not defined by legislation until the passage of the 
Act of January 12, 1705,^ an elaborate measure relating 
to the probate of written and nuncupative wills. This 
act in its last section provided for the appointment of 
the register general by the governor and required him 

1 Sussex County Records, MSS. Historical Society of Penn- 
sylvania. For similar entries, see Turner's Sussex County Rec- 
ords, 133. 

2 II Statutes at Large, 194; II Colonial Records, 238, Janu- 
ary 12, 1705. 



220 EARLY COURTS OF PENNSYLVANIA. 

to keep an office at Philadelphia and appoint deputies 
for the other counties, as had been the practice. All 
of these officers were required to give bonds for the 
faithful performance of their duties, which were to be 
recorded in the orphans' court and to be for the use of 
parties aggrieved. 

Failure- to keep these positions filled seems to have 
caused dissatisfaction, for an act was passed June 7, 
1712,^ which, after reciting that "no register has been 
commissioned and deputies constituted in each county 
as the act (of 1705) directs," goes on to enact that in 
case of the removal of the register general by death, or 
otherwise, another fit person should be commissioned 
within three weeks; that if the governor failed to act, 
the agents of the proprietor should appoint, and if they 
too failed, the judges of the common pleas of Phila- 
delphia should make the appointment. Governor Gookin 
thought that two months' time was little enough to 
appoint the officer, and that the office should be kept at 
Philadelphia for the whole province, for the greater 
security of the public. The distance, he said, was no 
objection, for it was well known that people in England 
traveled much farther on such occasions.^ Neverthe- 
less he finally agreed to the bill which became a law and 
was approved by the queen in council February 20, 
1713-4.3 

In this statute it was also enacted — 

"That where objections are made or caveats entered against 
the proving of any will or granting letters of administration, 
and where there is or shall be occasion to take the final accounts 
of executors or administrators, or make distribution of de- 
cedents' estates, the register-general and his deputies, respec- 
tively, shall, in every such case, call to their assistance two or 

V/lI Statutes at Large, 421. 

^11 Colonial Records, 576, May 27, 1712. 

3 II Statutes at Large, 541. 



EARLY COURTS OF PENNSYLVANIA. 221 

more of the justices of the said court of common pleas for the 
county where they are concerned, who are hereby empowered 
and required to give their assistance accordingly to decide the 
said caveats and matters in controversy, settle the said accounts, 
make distributions, and do all such other judicial acts as do or 
shall belong or ought of right to be done by any person or 
persons having power by law to take probate of wills and grant 
administration. ' ' ^ 

This is the origin of the register's court, as to which 
more will be said hereafter. It will be noticed that the 
act seems to contemplate the taking of accounts of 
executors and administrators before this court, but this 
jurisdiction, if ever exercised, must have been very 
limited, for the orphans' court already had jurisdiction 
of such accounts in cases of intestacy^ and where the 
interests of minors were involved, a jurisdiction defined 
and amplified by an act passed in the following year.^ 
When, more than one hundred years later, the act of 
1712 was invoked as authority for an attachment issued 
by the register's court to compel an administrator to 
account, the supreme court in discharging the prisoner 
on a writ of habeas corpus said, per Tilghman, C. J. : — 

"This law has never been expressly repealed, and so far 
as concerns caveats, it has been always in force. But the final 
settlement of the accounts of executors and administrators, 
and making distribution of the estates of intestates, having 
been expressly given to the Orphans' Court by the Act of 
27 March, 1713, the jurisdiction of the Register's Court, on 
these subjects, has been supposed to be taken away by impli- 
cation, and for a long course of time the practice has been 
to settle final accounts in the Orphans' Court and not in the 
Register's Court. * * * We are of opinion, that at the time 
of the adoption of this constitution, the Act of 1712, so far as 
concerned the final settlement of accounts of executors and 



1 II Statutes at Large, 423, § 3. 

2 Act of January 12, 1705, II Statutes at Large, 199. 

3 Act of March 27, 1713, III Statutes at Large, 14. 



222 EARLY COURTS OF PENNSYLVANIA. 

administrators, was not in force, being either repealed by im- 
plication or obsolete."^ 

As a matter of fact the Orphans' Court Act of 1713 was 
introduced in the assembly on February 10, 1712, and 
passed on the sixteenth of the same month, before the 
register's act, but was held over by the governor, as too 
important to be hurried, and submitted to Judge 
Mompesson for his opinion. The judge returned the 
bill to the governor March 25, 1713, with several pro- 
posed amendments. To these the assembly refused to 
accede and the governor, considering the amendments 
not essential, agreed to the passage of the bill, which 
became a law on March 27, 1713.^ 

During the administration of Governor Fletcher the 
council heard an informal appeal from the probate of a 
will by Markham, as appears in the minutes of the 
council for June 5, 1694. 

"His Excellie BENJAMIN FLETCHER. 
"Wm. Markham, Esq^., Leiv* Governor. 

Andr Robeson, ^ 

pat. Robinson, >- Esqrs. Wm. Clarke, \ ^ 

Wm. Salway, } Geo. forman, f 

"His Excellie Having ordered the Hearing of what might be 
offered ag^ the will of peter de buc, deceased, and severall 
things being offered by sundrie persons, wherein they seem to 
insinuate there was fraud and Collusion in the making thereof, 
His Excellie did, upon hearing therof, dismiss the people, and 
desired the Councill to give their opinions upon the whole 
matter, Whether or not the will, which was proved befor the 
Leivt Governor, Can be allowed or not; Which being putt to the 
vote amongst the members of Councill, was caried in the affirm- 
ative, & his Excellie did allow yrof."^ 



^Commonwealth v. Brady, 3 Sergeant & Rawle's, 309 (1817). 

2 Charter and Laws of Pennsyvlania, 302. 

3 I Colonial Records, 407, June 5, 1694. 



EARLY COURTS OF PENNSYLVANIA. 223 

The care of the persons and property of orphans was 
a subject that seems to have particularly appealed to 
the philanthropic founder of the commonwealth. In 
England, the lord chancellor was the supreme guardian 
of all infants and the conduct of both guardian and 
ward was within the controlling jurisdiction of chan- 
cery.^ As we have already seen, that court was not in 
favor with Penn or his fellow colonists, and, in respect 
to this branch of its jurisdiction, they were lucky enough 
to establish a substitute founded on precedent and suc- 
cessful in operation, the orphans' court. 

The name as well as the early jurisdiction of this 
court was borrowed from the Court of Orphans of the 
city of London. 2 

"It has been resolved," says Bohun, — ■ 

"That there hath been a Court of Orphans time out of mind 
in London; and that there hath been a Custom, if any Freeman 
or Free woman die, leaving Orphans within age unmarried, that 
the said Court have had the custody of their Body and Goods: 
And that the Executors and Administrators have used, and 
ought to exhibit true Inventories before them; and if any Debt 
appear due, to become bound to the Chamberlain to the use of 
the Orphans in a reasonable Sum to make a true Account upon 
Oath of them, after they have been received and if they refuse, to 
commit them till they will become bound; and this was adjudged 
to be a reasonable Custom."^ 



^ I Blackstone's Commentaries, 463. 

""Wimmer's Appeal, 1 Wharton's Reports, 102 (1836). The 
court of the burgomaster and schepens of the city of New York 
acted as an orphans' court during the Dutch period. To relieve 
the court of this work Stuyvesant created a separate court of 
orphan masters, which ceased to exist when the colony passed 
into the hands of the English. Scott's History of the Courts 
of New York (1909), 40; Records of the Court of New Amster- 
dam, Vol. II, 341. There is no evidence, however, that this 
court influenced Penn in establishing orphans' courts in Penn- 
sylvania. 

3 Bohun's Privileges of London (Edition of 1723), 314. 



224 • EARLY COURTS OF PENNSYLVANIA. 

The court, it is further said, was held before the lord 
mayor and aldermen of the city of London. The com- 
mon sergeant of the city took the inventories and 
accounts, while all securities for the orphans' portions 
were taken in the name of the city chamberlain. The 
court could commit the custody of an orphan to such 
person as they thought fit, even when the father had 
devised the custody, and if any person married an 
orphan without the consent of the court, such person 
might be "fined by them according to the Quality and 
Portion of the Orphan; and unless such Person do pay 
the Fine, or give Security to pay it, the Court may 
commit him to Newgate, to remain there till he submit 
to their Orders." 

Upon the death of a freeman the widow or executor 
was summoned to bring in an inventory and appraise- 
ment, and when the inventory was so exhibited, the 
executor was bound either to pay the money due the 
orphans into the chamber of London, where interest 
was allowed, or to find security by bond or recognizance 
to pay the amount due. When the orphans came of 
age or married, with the consent of the court, they were 
brought into court with a person to prove their age and 
there acknowledged satisfaction for their respective por- 
tions. 

Although somewhat paternal, according to our view, 
the system was an undoubted privilege when compared 
with the burdensome incidents of feudal wardship, and, 
even in 1682, when wardship had been abolished over 
twenty years, ^ the citizen preferred his own court, to 
chancery, with its aggravating delays and extortionate 
fees. Once indeed, the city fathers betrayed their trust. 
King Charles II succeeded in obtaining from the city a 
loan of the orphans' moneys, paying interest thereon 

1 Act of 12 Charles II, chapter 24 (1660). 



EARLY COURTS OF PENNSYLVANIA. 225 

until 1671, when he closed the Exchequer "and thereby 
became not only Bankrupt himself, but occasioned the 
Chamber of the said City to be so also: whereby many 
Thousand of City Orphans (heu Pietas Regum!) were 
reduced to misery and want,"^ — a wrong that remained 
unredressed until the reign of William and Mary.^ 

At the second session of the legislature under the pro- 
prietorship of Penn, March 10, 1683, it was enacted — 

"That the Justices of each respective County Court, shall 
sitt twice every year, to inspect and take Care of the Estates, 
usage, and Employment of Orphans, which shall be called The 
Orphans' Court, and sitt the first third day of ye week, in the 
first and eighth month yearly; That Care may be taken for those, 
that are not able to take care for themselves."^ 

The same assembly also provided that executors and 
guardians should give bonds and — 

"If any man shall refuse this honest Care and Charge in 
the government. Unless hee hath five children to take care of, 
or is already executor to one Will or hath persons nearer re- 
lated to him, who in all likelihood will impose that Charge 
upon him; hee shall be fined at the Discretion of the Governor 
and Provincial Council."* 

Whether this court was suggested by Penn himself or 
by one of his followers the minutes of the council do not 
show. But, at any rate, the idea commended itself to 
the proprietor, for he mentions it in a letter to the Free 
Society of Traders dated August 16, 1683. "Spring and 
fall," he writes, "there is an orphans' court in each 
county to inspect and regulate the affairs of orphans 
and widows." In fact the minutes of the Bucks County 



1 Bohun, 336. 

2 Act of 5 and 6 William & Mary, chapter 10. 

3 Charter and Laws of Pennsylvania, 131. 
* Charter and Lavv^s of Pennsylvania, 142. 



226 EARLY COURTS OF PENNSYLVANIA. 

court show Penn presiding in an orphans' court con- 
temporaneous with if not prior to the passage of the act. 

"Pennsilvania Bucks SS. At an orphans' court held by the 
King's authority in the name of WilHam Penn, Proprietary and 
Governor of the said Province and territory thereto belonging 
at Gilbert Wheelers' for the aforesaid County, the 4th day of 
the first, month 1683, to take account of improvements and 
usage of estates of Orphans. 

"Present, the Governor, William Penn, Justices — James 
Harrison, Jona Otter, Wm. Yardley, Wm. Berks, Thomas 
Fitz water and Phineas Pemberton Clark. 

"The next meeting held by adjournment 11, 1 mo. 1683, 
Present — Wm. Penn, Governor, James Harrison and Wm. 
Berks, Justices."^ 

At this time some of the business that belonged to the 
register general and much that afterwards fell to the 
orphans' court was transacted in the provincial council. 
In several instances administrators were appointed.^ 
One estate that seems to have given some trouble was 
that of Christopher Taylor, the former register. It 
appeared that he had named the proprietor and another 
as his executors, both of whom were absent at the time 
of his death. Administration was refused to the son as 
contrary to the intention of the will and a temporary 
administrator was appointed, who was to account to 
the executors or the council.^ 

The most frequent applications to the council were 
those for the sale of land for the payment of decedents' 
debts. Penn in the laws agreed upon in England had 
incorporated a provision that lands and goods should be 

^ Address of Peter McCall, Esq., before the Law Academy 
(1838). 

2 I Colonial Records, 39, 20, 12 mo. 1683; I Colonial Records, 
62, 18 4 mo. 1684. 

3 I Colonial Records, 137, 5, 5 mo. 1686; 138, 6, 5 mo. 1686; 
143, 21 September, 1686. 



EARLY COURTS OF PENNSYLVANIA. 227 

liable for debts except where there was legal issue and 
then all the goods and one third of the land only/ which 
provision was incorporated in the Act of December 10, 
1682.^ The orphans' court was by the Act of 10, 3 mo., 
1688, empowered, with the approval of the governor and 
council, to permit the widow or administrator to sell 
lands to defray debts, educate the children, support the 
widow and improve the remainder of the estate.^ After 
passing through minor changes of form this act was 
supplied by the Act of November 27, 1700,* which gave 
the jurisdiction to the orphans' court without the inter- 
vention of the council. This act was disapproved by 
the queen, on the advice of the attorney general, as not 
sufficiently protecting marriage settlements and the 
interests of the children,^ but the same provisions were 
incorporated in the intestate Act of January 12, 1705,® 
in terms carefully framed to meet these objections and 
the act became a law. It is interesting to note that what 
was perhaps the first order of sale for debts was verbal, 
as would appear from the following extract from the 
minutes of the council : — 

"The Petition of Mary Mason, Widdow, was Read; Requesting 
ye Councill to Confirme y^ Sale of Lotts and Lands sold by y^ 
said Widdow, by y^ Gov^s Verball order, to pay her Deceased 
husband's Debts, and for subsistence of herselfe and Children. 

"James Harrison being prosent & attesting ye truth of ye 
Order, and she declaring y* ye Land sould was ye Citty Lotts, 
and ye Liberty Land, and but two hundred Acres out of one 
thousand, and not ye Land yt was Improved; ye Councill ordered 
a Confirmation.'"' 



^ Charter and Laws of Pennsylvania, 100. See page 28, supra. 
2 Charter and Laws of Pennsylvania, 120, 181. 
^ Charter and Laws of Pennsylvania, 180; I Colonial Records, 
176, 12, 2 mo. 1688. 

* II Statutes at Large, 51. 

'" II Statutes at Large, 494. 

^ II Statute? at Large, 199, §§ 3, 4. 

' I Colonial Records, 103, 16, 7 mo. 1685. 



228 EARLY COURTS OF PENNSYLVANIA. 

It will be noticed that the widow took the precaution 
to have the verbal order confirmed. Another illustra- 
tion may be given which leaves the reader in some doubt 
as to the miracle proposed to be accomplished with the 
fund : — 

"Att a Council Held att Philad. die Lunae, 1st July, 1700. 

Present : 

"WM. PENN, pror and Governor 

Edwd Shippin, Wm. Clark, Thomas Storie. 

Rt. Turner, John Moll, 

"Upon reading the petion of Sarah Gibbs, widdow, setting 
forth yt Her Husband Latelie dyed, Leaving her much in debt, 
& the charge of a sucking child, & having nothing wherwt to 
pay ye sd debts but ye shell of a smal house, unfinisht, & a 
Lott valued att 50^*, yrfor, requesting ye Go^ & Council to 
allow, permitt, & authorize her to make sale yrof, towards ye 
defraying of sd debts, educaon of sd infant & her support, 
according to the Laws and Customs of sd province. Wheron 
Rt. turner signified yt ye sd allegaons w^er true, ye circumstances 
qrof being to him well known. 

"Itt was yrfor Ordered y^sd Sarah Gibbs be pmitted, allowed & 
authorized, & is hereby by ye Gor & Council pmitted, allowed & 
authorized, to make sale & conveyance to anie pson qtsoever, 
of ye sd house & Lott, wt its improvments and apptenances, & 
to ym & yr Heirs & assigns for ever, towards ye defraying her 
just debts, ye educaon & maintainance of sd infant & her owne 
support, according to ye Laws & Customs of sd province, to 
Hold to ye sd pchasers yrof & yr heirs & assigns, & to y' use & 
behoofe, in fee simple & estate of inheritance forever."^ 

There does not appear to have been any express 
statutory directions as to the distribution of decedents' 
estates in general until June 4, 1693, when at the stormy 
session of that year a bill was passed relating to the 
distribution of decedents' estates, the order of payment 
of debts and the disposition of the residue of real and 

1 I Colonial Records, 552, July 1, 1700. 



EARLY COURTS OF PENNSYLVANIA. 229 

personal estate, all of which distributions "as well of the 
Testate's as intestate's estate are to be made by the 
Register General for the time being, within twelve 
months after the Decedent's Death." ^ The distributees 
were required to give refunding bonds to the register 
general. It was further provided that all executors 
and guardians of persons under age should give bond 
to the orphans' court. All of these provisions were sub- 
stantially re-enacted in the Acts of May 24, 1697, ^ and 
of November 27, 1700,^ except that in the latter act the 
distribution was to be made by the "registers of the 
counties." The last act was disapproved by the queen. 
The jurisdiction of the orphans' court, in matters of 
accounts, was in some degree widened by the judiciary 
Act of October 28, 1701,* an act which we have already 
seen failed to meet the approval of the privy council. 
By this act the orphans' court was not only given juris- 
diction over all executors, administrators and trustees 
accountable for lands or chattels belonging to orphans 
or minors, but it was further provided that those who 
filed inventories, gave bond or made accounts in the 
orphans' court should not be obliged to account to the 
register general's office. By the Act of January 12, 
1705-6,^ relating to intestate estates, complete jurisdic- 
tion over the settlement of aviministrators' accounts 
and the distribution of the surplus after payment of debts 
was conferred upon the orphans' court. By this statute, 
which was allowed to become a law, the orphans' court 
may be said to have finally departed from the limited 



^ Charter and Laws of Penns34vania, 231; I Colonial Records, 
390, May 31, 1693. 

2 Charter and Laws of Pennsylvania, 261. 

3 II Statutes at Large, 31, § 3. 

4 II Statutes at Large, 148, § 8. 
•^ II Statutes at Large, 199. 



230 EARLY COURTS OF PENNSYLVANIA. 

scope of its London prototype to enter upon a con- 
stantly widening field of activities. 

The act, however, which is the principal source of 
orphans' court jurisdiction is that of March 27, 1712-3,^ 
passed, as stated in the preamble, to take the place of 
the prior acts repealed by the queen. It is too long to 
give in full, but, briefly stated, the justices of the court 
of quarter sessions were empowered to hold a court of 
record called the orphans' court, with jurisdiction over 
the accounts of such persons who as guardians, trustees, 
tutors, executors or administrators were entrusted with 
the property, real or personal, of orphans or persons 
under age, to see that the surety for such persons was 
sufficient, to revoke their letters, if necessary, to see 
that funds were invested, appoint guardians or bind the 
minors out as apprentices, and upon a settlement of an 
account to require a proper discharge for the account- 
ant, "and if any person or persons, being duly sum- 
moned to appear in any of the said orphans' courts, 
ten days before the time appointed for their appearance, 
shall make default, the justices may send their attach- 
ments for contempts, and may force obedience to their 
warrants, sentences and orders concerning any matter or 
thing cognizable in the same courts, by imprisonment of 
body, or sequestration of lands or goods, as fully as any 
court of equity may or can do. Provided always, That 
if any person or persons shall be aggrieved with any 
definitive sentence or judgment of the said orphans' 
court, it shall be lawful for them to appeal from the 
same to the supreme court; which appeal, upon security 
given, as is usual in such cases, shall be granted accord- 
ingly." 

This act, with sorrie amendments, remained in force 
until supplied in 1832 by the act drafted by commis- 

1 III Statutes at Large, 14. 



EARLY COURTS OF PENNSYLVANIA. 231 

sioners to revise the civil code. We have already seen 
that an act of September 29, 1759,^ which failed of ap- 
proval by the Crown, appointed the judges of the commoR 
pleas to hold the orphans' court. This, however, was a 
matter of form rather than substance, for the judges of 
the common pleas were selected from the general com- 
mission of the peace and none, at this period, was learned 
in the law. The dockets of the orphans' court of Phila- 
delphia County, which are complete from 1719, show a 
long list of worthy citizens presiding in this tribunal. 
The court did not have any special president but certain 
justices of the peace to whom the service was congenial 
usually attended its sessions. John Hill Martin notes^ 
that whenever the mayor of the city was present he 
always presided, and on all other occasions the order of 
seniority of justices was rigidly observed, erasures being 
made in the minutes to correct errors in this respect. 

The oldest docket in the Philadelphia office opens the 
ninth of April, 1719, with the following justices present: 
Jonathan Dickinson, Robert Assheton and Clement 
Plumstead. The first case is a petition for the appoint- 
ment of a guardian and these cases are the most numer- 
ous in the early records. 

There are also many petitions for the sale of land for 
the payment of debts or to support minors, to partition 
real estate, to compel the filing of accounts and for the 
appointment of auditors. At the court held Febru- 
ary 12, 1738, there is a petition by the widow and execu- 
trix of Abel Cain for leave to sell "a negro woman Mumbo 
and her increase" for the support of the testator's chil- 
dren. The return shows that forty pounds was realized 
at the sale, of which, fifteen pounds was directed to be 
paid to the widow, to reimburse her for expenditures 



1 V Statutes at Large, 462. 

2 Martin's Bench and Bar of Philadelphia, 66. 



232 EARLY COURTS OF PENNSYLVANIA. 

made, fifteen pounds to be expended in purchasing cloth- 
ing for the son and putting him out as an apprentice, and 
the balance was directed to remain in court until further 
order. ^ 

The proceedings are usually by petition and answer 
and the judgment of the court is entered in the form of 
an order.' In 1738 a subpoena was issued to an executor 
to appear and exhibit his account, and on his failure to 
do so an attachment was awarded.^ But ten years later 
the citation is in use. Thus, on June 20, 1748, on peti- 
tion by the guardian of a minor and heir at law of a 
decedent averring that the widow and administratrix 
had married again and was wasting the estate, a citation 
was directed to the administratrix and her husband, 
requiring them to appear and render an account, return- 
able the tenth day of July next.^ 

The most important audit of these early days was that 
of the accounts of the trustees for the sale of the lands 
of the Society of Free Traders, which by an Act of 
Assembly of March 2, 1722— 3,* was referred to this court, 
which was also directed to hear and pass upon all claims 
for a share in the funds. This society, an association in 
the nature of a joint stock company, which had pur- 
chased twenty thousand acres of land from Penn in 
1681, had not proved a success, its affairs had been 
neglected and at the instance of the certificate holders 
and their heirs the act was passed under which its busi- 
ness was wound up. The court first met for this audit 
on March 10, 1724, and the meetings continued at inter- 
vals for a number of years. 

It is now, of course, well settled that the orphans' 
court while a court of equity with respect to subjects 



^ Orphans' Court Docket No. 2, page 7S. 
2 Orphans' Court Docket No. 2, pages 59, 93. 
^ Orphans' Court Docket No. 3, page 53. 
* III Statutes at Large, 345. 



EARLY COURTS OF PENNSYLVANIA. 233 

within its jurisdiction, has no general chancery powers, 
but only such as are derived from statute or are neces- 
sary to make its statutory powers effective.^ In 1745 
there is recorded a curious effort to extend its jurisdic- 
tion. William Good, by his guardian, Ralph Assheton, 
filed a petition averring that petitioner was the owner 
of ten acres of land in the township of Passyunk which 
had "by the extraordinary rise of the price of lands 
thereabouts become of considerable value;" that one 
Joseph Scull, brickmaker, taking advantage of the fact 
that petitioner was a minor, had entered on said 
land, dug pits and was about to set up a brick yard to 
the damage of petitioner, pretending that he had a 
lease from petitioner's father, although that lease had 
expired and contained no clause permitting him to com- 
mit waste, and praying that the said Scull might be 
cited to appear and answer the complaint and, if the 
facts prove true, then that Scull be restrained from 
committing waste or that petitioner have such other 
relief "as is agreeable to equity and good conscience." 
Whereupon it was ordered that the said Joseph Scull 
be served with a copy of the petition and cited to appear 
and answer the same.^ The answer filed July 29, 1745, 
averred that any demand William Good might have had 
against the respondent for waste, damages or otherwise 
was not cognizable in this court, but in the courts of 
common law duly constituted and settled in said prov- 
ince, and further that the tract referred to did not 
belong to petitioner but to his mother, who had leased 
it to respondent, and that the present right and title 
to the same was not to be impeached, tried and deter- 
mined in this court but in the ordinary course of law. 

^ Brinker v. Brinker, 7 Pennsylvania Reports, 53 (1847); 
Steffy's Appeal, 76 Pennsylvania Reports, 94 (1874); Kidder's 
Estate, 1 Kulp's Reports, 412 (1875). 

2 Orphans' Court Docket No. 2, page 176. 



234 EARLY COURTS OF PENNSYLVANIA. 

There is no entry of a decree, and perhaps the answer 
was regarded by the parties as conclusive, inasmuch as a 
question of title was raised. After the closing of the 
governor's court of chancery there was no court with 
jurisdiction to enjoin the commission of waste, and the 
attempt to persuade the orphans to exercise that power 
indicates ' the need of such a remedy, at least to the 
mind of the guardian, who was himself a justice, and 
to that of the presiding judge, William Allen, afterwards 
chief justice of the province.^ 

The constitution of 1776 provided that the orphans' 
court should be held quarterly in each city and county, 
while the Act of January 28, 1777,^ passed for the pur- 
pose of putting into effect so much of the provincial 
law as was necessary in the commonwealth, conferred 
upon these courts the powers and jurisdiction which 
they had theretofore exercised. By the Act of March 14, 
1777,^ registers of wills were directed to be appointed for 
each county by the general assembly and the office of 
register general was abolished. The constitution of 
1790 vested the appointment of registers in the governor, 
but the office was made elective by the amended consti- 
tution of 1838.^ 

By the constitution of 1790^ it was provided that the 
judges of the court of common pleas of each county. 



1 By the x\ct of May 19, 1874, P. L. 206, § 7, the orphans' court 
has power to prevent by order, in the nature of an injunction, 
acts contrary to law or equity prejudicial to the propert}^ over 
which they have jurisdiction. See Pepper and Lewis's Digest 
of Decisions, Vol. 15, col. 24472. 

2 IX Statutes at Large, 29; 1 Smith's Laws of Pennsylvania, 
429. 

2 IX Statutes at Large, 68; 1 Smith's Laws of Pennsylvania, 
443. 

^ Article V, § 11, Constitution of 1790; Article VI, § 3 , Con- 
stitution of 1838. 

" Article V, § 7, Constitution of 1790; 3 Smith's Laws of Penn- 
sylvania, page xxxix. 



EARLY COURTS OF PENNSYLVANIA. 235 

any two of whom should be a quorum, should com.pose 
the orphans' court thereof, and the register of wills 
together with the said judges or any two of them should 
compose the register's court. By the Act of April 13, 
1791,^ the courts were established in conformity with 
the constitution. 

The orphans' court, although called a court of record 
in the Act of 1713, was not, at first, accorded that dig- 
nity. In 1786 it was held that the settlement of an 
executor's account was not conclusive^ and this decision 
was followed in 1818.^ In other cases there was shown 
a tendency to discredit proceedings before these tribunals 
which, perhaps on this very account, had become loose 
and irregular. Judge Duncan in McPherson v. Cunliff* 
gives a melancholy picture of the careless practice; the 
orders written on loose scraps of paper and deposited 
in untitled pigeon holes, or packed up as useless lumber 
in old trunks. Nevertheless, his opinion in that case, 
vindicating the authority of decrees of orphans' courts, 
checked their decline, while his criticism, added to com- 
plaints from the bench and bar, moved the legislature 
in the resolution for the revision of the civil code passed 
March 23, 1830, to require the commissioners "to revise 
the several statutes relative to the settlement of accounts 
before registers and proceedings in the orphans' courts, 
as soon as conveniently may be, and report the same for 
the determination of the general assembly at their next 
session." iVccordingly the commissioners made their 
first report to the legislature on January 31, 1831, and 



1 3 Smith's Laws of Pennsylvania, 28. 

2 Harriot v. Davey, 1 Dallas's Report, 164 (1786). 

^ Kohr V. Fedderhaff, 4 Sergeant & Rawle's Reports, 248 
(1818). 

^11 Sergeant & Rawle's Reports, 422 (1824). So far as 
Philadelphia County is concerned the orphans' court records are 
in a better state of preservation than those of the other courts. 



236 EARLY COURTS OF PENNSYLVANIA. 

presented two bills, one relating to registers and regis- 
ters' courts and the other relating to orphans' courts. 
Upon the latter bill the commissioners observed : — 

"The bill relating to the Orphans' Court has occupied a 
large share of our time and reflections. The peculiar structure 
of that court, its extensive but ill-defined sphere of jurisdiction, 
the magnitude of the interest upon which it operates, the 
uncertainty of the code of law by which it is regulated, and its 
equally uncertain and insufficient practice and process, serve 
to surround with difficulties every attempt to frame a regular 
system for it : So convinced are we of the arduousness of the 
task of compiling a complete system, which shall embrace 
the constitution, jurisdiction, powers, and practice, of this 
court, that had it not been for the express directions of the 
legislature to report upon it at the present session, we should 
probably have reserved this subject to the last, and given it 
the utmost deliberation that our limits allowed. Of the necessity 
however of an early as well as thorough examination and revision 
of the acts of assembly relating to this tribunal, we are fully 
convinced."^ 

The bills recommended by the commissioners were 
enacted into laws at the session of 1832, that relating 
to registers and registers' courts being approved March 
15, 1832,^ and that relating to orphans' courts on 
March 29, 1832.^ 

Under these acts the register was given jurisdiction 
within the county for which he was appointed, "of the 
probate of wills and testaments, of the granting of 
letters testamentary, and of administration, of the 
passing and filing of the accounts of executors, adminis- 
trators and guardians, and of any other matter whereof 
jurisdiction may be at any time expressly annexed to his 
office." 



^ First Report of the Commissioners to Revise the Civil Code 
(1831). 

2 P. L. 135. 

3 P. L. 190. 



EARLY COURTS OF PENNSYLVANIA. 237 

When a caveat was filed, objection made to the 
granting of letters of administration, or when any dis- 
putable or difficult matter came into controversy, the 
register, at the request of any person interested, was 
required to call a register's court for the decision thereof. 
So also, an appeal might be taken to the register's court 
from all the judicial acts and decisions of the register. 
The register's court comprised the register of wills and 
the judges of the court of common pleas of the county 
or any two of said judges. 

After the register had allowed and filed any account in 
his office, he was required to prepare and present a 
certified copy thereof to the orphans' court at its next 
stated meeting and give notice by public advertisement 
that said accounts would be presented to the orphans' 
court for confirmation. 

The judges of the court of common pleas of each 
county or any two of them composed the orphans' court, 
which was declared a court of record, the decrees of 
which were not to be reversed or avoided collaterally in 
any other court. The jurisdiction of the court was 
summarized in the act as follows : — 

"The jurisdiction of the several Orphans' Courts of this 
Commonwealth shall extend to and embrace the appointment, 
control, removal and discharge of guardians, the settlement of 
their accounts, the removal and discharge of executors and 
administrators deriving their authority from the register of 
the respective county, the settlement of the accounts of such 
executors and administrators and the distribution of the assets 
or surplusage of the estates of decedents, after such settlements 
among creditors or others interested in the sale or partition of 
the real estate of decedents among the heirs, and generally 
to all cases within their respective counties, wherein executors, 
administrators, guardians or trustees are or may be possessed 
of or undertake the care and management of, or are in any way 
accountable for any real or personal estate of a decedent, and 
such jurisdiction shall be exercised in the manner hereinafter 
provided."^ 

1 Section 4 of the Act of March 29, 1832, P. L. 190. 



238 EARLY COURTS OF PENNSYLVANIA. 

No account of an executor, administrator or guardian 
was to be confirmed and allowed by the court unless 
advertised by the register of wills as provided in the 
prior act and all accounts, except partial accounts by 
guardians, were to be examined by the court or referred 
to auditors, unless otherwise agreed by all parties in 
interest.* These provisions were adopted to compel a 
more thorough audit of accounts. Under the prior 
practice the settlement of accounts in the register's 
office was generally a perfunctory matter and no more 
than a mere vouching of the items of the account, while 
the confirmation in the orphans' court was largely a 
matter of form. A reform in these matters was abso- 
lutely necessary if the decrees of the orphans' court 
were to be made conclusive. Finally the practice and 
process of the orphans' court were defined and strength- 
ened. Writing in 1847, Mr. Hood observed: — 

"The orphans' court, as at present constituted, is a court 
of a peculiar nature both as respects its jurisdiction, powers, 
and the forms of its proceedings, partaking of the characters 
of a court of common law, a court of equity, and an ecclesiastical 
court. The process of the orphans' court would seem, in some 
respects, to resemble that of the English ecclesiastical courts, 
whose proceedings are regulated according to the practice of the 
civil and canon law; or rather according to a mixture of both 
collected and new-modelled by their own particular usages and 
the interpretation of the courts of common law. It was this 
establishment of the civil law process in the ecclesiastical courts 
that made a coalition impracticable between them and the 
national tribunals of England. The act of 1832 has remodelled 
the forms of proceeding in the orphans' court, making them 
approximate more nearly to the common law. Hence, in the 
orphans' court practice, are found the motion, rule, fieri facias, 
and subpcena of the common law courts, the petition of chancery, 
and the citation of doctors commons; and mingled with them, 
the order, decree, and sequestration derived through these equity 
and ecclesiastical tribunals, from the civil and canon laws. 
In one respect the orphans' court may be said to be of a higher 
nature than the court of chancery and the ecclesiastical courts of 



EARLY COURTS OF PENNSYLVANIA. 239 

England: for the court of chancery, wnen proceeding by 
subpoena, is not a court of record, nor are the ecclesiastical 
tribunals, courts of record."^ 

Under the Act of 1832, and some additional acts 
relating to decedents' estates subsequently passed on 
the recommendation of the commissioners, the orphans' 
courts reached their full dignity as courts of record and 
have justified their creation by a long career of useful- 
ness. The confidence of the community has been 
further marked by the extension of their jurisdiction in 
numerous cases as, for example, under the Price Act.^ 
To fully describe the powers of the court would exceed 
the limits of this chapter and indeed open up the whole 
subject of orphans' court practice, a matter that has 
been thoroughly discussed in several text books. ^ It is 
necessary, however, to refer to certain changes brought 
about by the constitution of 1874 which abolished the 
register's court and conferred its jurisdiction on the 
orplians' court, provided for the establishment of sepa- 
rate orphans' courts in counties having a population 
exceeding one hundred and fifty thousand, and directed 
that all accounts filed with the register of wills, as clerk 
of a separate orphans' court, should be audited by the 
court without expense to the parties, unless the parties 
themselves nominated an auditor.* 

These changes have proved most beneficial. The 
registers' court was unnecessary and was wisely abolished, 
while the creation of separate orphans' courts in the 
larger communities has been particularly advantageous 
in furnishing to the judiciary of the state a corps of 



1 Hood on Executors, 103. 

2 Act of April 18, 1853, P. L. 503. 

^ Scott on the Intestate System of Pennsylvania, Rhone's 
Orphans' Court Practice, Brewster's Orphans' Court Practice, 
Pepper and Lewis's Digest of Decisions, Vol. 14. col. 24234. 

* Article V, § 22, Constitution of 1874; see appendix. 



240 EARLY COURTS OF PENNSYLVANIA. 

experts, specially trained in the handling of those 
difficult and intricate problems arising out of the devo- 
lution of property by death. The name of the court 
today indicates but a small part of its functions, but is 
an historic illustration of the way in which great insti- 
tutions sometimes grow from small beginnings. 



CHAPTER VI. 

In tracing the early history of the judicial proceed- 
ings by which roads and streets are laid out and opened 
in Pennsylvania, the common law of England lends 
little assistance. The physical conditions in colony and 
mother country were so radically different as to afford 
little analogy in matters of local or municipal regula- 
tion. In England, at the time of the settlement of the 
province, the country was traversed in every direction, 
from town to town and village to village, by ways so 
well defined by custom and so well established by repu- 
tation, that a complaint of want of thoroughfare was 
uncommon.^ In Pennsylvania, as in the other colonies, 
the opening of roads for public travel and for the trans- 
portation of commodities was an immediate and press- 
ing economic necessity. 

The science of road construction was still in its infancy 
and throughout England roads were, during the seven- 
teenth and eighteenth centuries, in a deplorable condi- 
tion. In the first year of the reign of Queen Anne, 
Charles III of Spain visited England. His experiences 
on the road between Portsmouth and Petworth in 
Sussex are thus related by one of his suite : — 

"We set out at six in the morning by torchlight to go to 
Petworth and did not get out of the coaches (save only when we 
were overturned or stuck fast in the mire) till we arrived at 
our journey's end. 'Twas a hard service for the Prince to sit 
fourteen hours in the coach that day without eating anything, 
and passing through the worst ways I ever saw in my life. We 
were thrown but once, indeed, in going, but our coach (which 
was the leading one) and his Highness's body coach would have 
suffered very much if the nimble boors of Sussex had not 
frequently poised it or supported it with their shoulders from 

^ Woolwych on Ways, 6. 



242 EARLY COURTS OF PENNSYLVANIA. 

Godalming almost to Petworth; and the nearer we approached 
the Duke of Somerset's house the more inaccessible it seemed 
to be. The last nine miles of the way cost us six hours to conquer 
them : and indeed we had never done it if our good master had 
not several times lent us a pair of horses out of his own coaching, 
whereby we were enabled to trace out the road for him."^ 

So Defoe, in a letter written in 1722, remarks: — 

"Going to church at a country village not far from Lewes, 
I saw an ancient lady — and a lady of very good quality I assure 
you — drawn in her coach to church with six oxen; nor was it 
done in frolic or humour, but mere necessity, the way being so 
stiff and deep that no horses could go in it."^ 

Few roads were more than bridle paths and a journey 
for any distance from home was a serious undertaking, 
that commonly meant the inditing of a last will and 
testament and the settlement of one's worldly affairs. 
A country gentleman when traveling alone at this time 
usually adopted the plan called riding post; that is, 
he hired at each stage two horses and a postboy, who 
carried the portmanteau behind him and rode back 
when fresh horses were required. 

With the physical conditions thus, it is not surprising 
that the road law of the country was that of the feudal 
period, except as affected by special turnpike acts. 
Three kinds of ways were recognized — footways, horse- 
ways and cartways. In the language of Coke: — 

"There be three kinds of wayes whereof you shall reade 
in our ancient bookes. First a footway, which is called iter, 
quod est jus eundi vel ambulandi hominis; and this is the first 
way. The second is a footway and horseway, which is called 
actus ab agendo; and this vulgarly is called packe and prime way 
because it is both a footway, which was the first or prime way 
and a packe or drift way also. The third is via or aditus which 
contains the other two and also a cartway etc. for this is jus 



^ England in the Eighteenth Century, Sidney, Vol. II, 3. 
2 England in the Eighteenth Century, Sidney, Vol. II, 6. 



EARLY COURTS OF PENNSYLVANIA. 243 

eundi, vehendi et vehiculum et jumentum ducendi: and 
this is two fold, viz: regia via, the king's highway for all men, 
et communis strata, belonging to a city or town or between 
neighbors and neighbors. This is called in our bookes chimin, 
being a French word for a way, whereof cometh chiminage, 
chiminagium or chimmagium, which signifieth a toll due by 
custome for having a way through a forest, and in ancient 
records it is sometimes called pedagium."^ 

Another classification divided ways into : King's high- 
ways, that is, public passages for the king and his sub- 
jects ; common ways or such as led from a village to the 
parish church or common fields, and were for the bene- 
fit of the particular inhabitants of the locality; and 
private ways, where particular individuals had a right 
of passage through certain land. 

The right to a public highway usually rested on an 
act of parliament, express grant, dedication, or was 
claimed by prescription, and, as already stated, com- 
plaints of want of thoroughfare seldom arose. If it 
became necessary to deviate from an existing way the 
nev/ route did not become a public highway without a 
writ of ad quod damnum and inquisition. This was an 
ancient writ issued out of and returnable into chancery 
through the petty-bag office and was directed to the 
escheator or sheriff, who was commanded to hold an 
inquisition to determine what damage would result to 
the king or his subjects from the grant so that compen- 
sation could be made a condition thereof.^ Without 
this writ the public could not justify going over a new 
way, as a common highway, but were obliged to show 
their excuse specially.^ If the purpose was to change 
an old way or alter its condition, the new way, or way 
so altered, was required to be as beneficial as the old 



^ Coke on Littleton, 56 A. 

2 Fitzherbert's Natura Brevium, 226. 

3 King V. Warde, Croke's Reports (Charles I), 226 (1633). 



244 EARLY COURTS OF PENNSYLVANIA. 

one.^ "These inquests of office," says Blackstone, 
speaking generally of sheriffs' and coroners' inquisitions, 
"were devised by law, as an authentic means to give the 
king his right by solemn matter of record without which 
he, in general, can neither take nor part from anything. 
For it is of the liberties of England and greatly for 
the safety of the subject, that the king may not enter 
upon and seize any man's possession upon bare surmises 
without the intervention of a jury."^ 

The obscurity of the practice and infrequency of 
reported cases shows that ad quod damnum proceedings 
never played an important part in highway law. The 
writ contained great possibilities, and, with a simplified 
procedure, might have become a useful vehicle for ac- 
commodating the conflicting interests of the public and 
the land owner, had road matters been of importance in 
the flourishing days of petty-bag jurisdiction. But in 
those times the ancient ways were sufficient for the 
needs of the public, and where new roads were formally 
opened, they were usually either dedicated by the land 
owner or laid out over unimproved lands without com- 
pensation. When the pressure for highway improve- 
ments became greater a statutory proceeding more 
convenient and inexpensive was substituted for the 
ancient WTit, preserving, however, the spirit and sub- 
stance of the earlier procedure.^ In some of the Ameri- 
can states, notably in Virginia and Kentucky, the writ 
ad quod damnum was introduced and applied in pro- 
ceedings for the erection of mill dams on streams, and 



1 Ex parte Armitage, Ambler's Reports, 294 (1755). 

2 III Blackstone's Commentaries, 259; Bonaparte v. Catnden 
and Atlantic Railroad Co., Baldwin's Reports (U. S.), 205 (1830) 
at page 221. 

3 13 George III, chapter 78, § 19; Davison v. Gill, 1 East's Re- 
ports, 64 (1800). 



EARLY COURTS OF PENNSYLVANIA. 245 

extended to other matters involving injury to and 
appropriation of private property. ^ 

It was about the time of the settlement of the colonies 
that eminent domain as a distinct branch of govern- 
mental power began to be discussed, although it had 
long existed as a necessary attribute of sovereignty. 
Grotius, in 1625, first used and apparently originated 
the phrase which, although open to criticism, in so far 
as it implies that the basis of the power is an ultimate 
ownership in the state of all property, has been univer- 
sally adopted as defining the power inherent in a sov- 
ereign state to take or authorize the taking of private 
property for public use.^ But in the seventeenth and 
eighteenth centuries the practical application of the 
principle and its relation to the constitutional restraints 
on state action had not been worked out.^ 

The period of Dutch supremacy was not marked by 
any special activity in road improvements. The colon- 
ists on both the North and South Rivers were scattered 
in villages along the banks and transportation was 
usually by water. The laying out of such highways as 
were needt^d came under the jurisdiction of the schout 
and schepens, while the streets of the capital were 
under the immediate supervision of the chief officials.* 
Thus an ordinance of the director and council of New 
Amsterdam of February 25, 1656, approves a survey of 



1 Wroe V. Harris, 2 Washington's Reports (Va.), 126 (1795); 
Gay V. Caldwell, Hardin's Reports (Ky.), 63, (1806); Mairs v. 
Gallahue, 9 Grattan's Reports (Va.), 94 (1852); Tracy v. EUza- 
bethtown, L. & B. S. Railroad Co., 78 Kentucky Reports, 309 
(1880); SchuylMl & 5. A^. Co. v. Decker, 2 Watt's Reports, 343, 
(1834). 

2 Grotius, De Jure Belli et Pacis, Lib. Ill, chapter 20, § 7. 
^ Nicholls on Eminent Domain, 7. 

* II New York Colonial Documents, 621; O'Callaghan's Laws 
and Ordinances of New Netherlands, 478. 



246 EARLY COURTS OF PENNSYLVANIA. 

the streets of the city and refers the execution to the 
burgomasters, who are to give notice to all persons, who 
may be damaged by the survey, to furnish a statement 
of their damages, and if an agreement cannot be reached, 
the matter is to be referred to two or three disinterested 
persons who are to appraise the lots.* Various regula- 
tions were adopted as to the use of the village streets, 
one of which may be quoted at length : — 

"Ordinance of the Vice Director and Commisaries of Fort 
Orange Passed 10 December 1659. The Worshipful Commissary 
and Commissionaries of Fort Orange and Village of Beverswyck, 
having heard divers complaints from the Burghers of this place, 
against playing at Golf along the streets, which causes great 
damage to the windows of the Houses, and exposes people to 
danger of being wounded, and is contrary to the freedom of the 
public streets; therefore their worships, wishing to prevent 
the same, forbid all persons playing Golf in the streets, on 
pain of forfeiting fl. 25 for each person who shall be found 
doing so."^ 

That some of the good people of Albany were devoting 
their time to golf at this period, is more surprising than 
that their fellow-townsmen objected to the use of the 
streets as links. 

Upon the conquest of the New Netherlands by the 
English the matter of highway regulation seems to have 
been neglected. There is no mention of the subject in 
the Duke of York's Laws, and this is the more surprising 
in view of the fact that they were drawn largely from 
New England sources where the subject of highways had 
received early attention. By a law of the colony of 
Massachusetts passed in 1639 highways were to be laid 
out on complaint to the county court, which was directed 
to appoint "two or three men of each next town whose 

^ O'Callaghan's Laws and Ordinances of New Netherlands, 219. 
2 O'Callaghan's Laws and Ordinances of New Netherlands, 367. 



EARLY COURTS OF PENNSYLVANIA. 247 

inhabitants had most occasion thereof," and these,, 
upon view, were to lay out such highway according to' 
order and make return to the next court, compensation 
to be paid to any man damaged in his improved ground 
by estimation of those who laid out the same. If the 
viewers disagreed or the person was dissatisfied with the 
acts of the viewers, the matter was to be referred to the 
county court, ^ — a simple and effective proceeding, and 
hard to improve upon, as long as the laying out of roads 
was regarded as a matter of local government. 

In the settlements on the Delaware the opening and 
repair of roads were matters within the jurisdiction of 
the court of sessions. Overseers of highways were 
appointed who were empowered to call upon the inhabit- 
ants for assistance in the construction and repair of 
highways and bridges, and persons refusing to work on 
the roads were fined by the courts.^ The following entry 
appears on the minutes of the court held at New Castle 
June 15, 1678:— 

"It being Represented to the court y* there is need of a 
highway to come from Jan Staalcops Round Christina to this 
Towne of New Castle, The court therefore ordered, that all the 
Inhabitants dwelling on the North syde of Christina, from 
brandewyn Creeke to the place or plantation of John Ogle, Doe 
with all Convenient speede make and Cleare a good and passable 
Highway from ye s^ Staalcops house Round Christina Creeke to 
this Towne of New Castle, and doe appoint for overseer thereof 
Mr. Abraham Man who is desired to see the worke Effectually 
done."^ 

At a court held December 3, 1679, the inhabitants 
were divided into companies under designated overseers 

^ Laws of Massachusetts Colony (1672), 64; compare Laws of 
Colony of New Plymouth (Edition of 1836), 64. 

2 Records of Court at Upland, 118, 192. 

3 Records of the Court of New Castle, 288. 



248 EARLY COURTS OF PENNSYLVANIA. 

and charged with the care of the highways in their 
respective districts. It was also ordered that — 

"Whereas for ye Common Good of the Country itt is found 
necessary that ye highwayes from place to place bee annually 
made good & cleared Itt is therefore resolved vizt That Every 
respective overseer take care that betweene Every decem & 
]\Iarch his part of ye highway bee made good & cleared, upon ye 
penalty & forfeiture of 1000 lb. of tobb if proved to be ye fault 
of ye overzeer and if any Inhabitant resorting under the company 
of any overseer shall refuse upon due notice to worke att ye 
highway till it be finisht hee to forfeit for Each such neglect 
400 lb. of tobacco. The highway to be Cleared as followeth 
vizt The way to bee made cleare of standing & Lying trees at 
Least 10 foot broad all stumpes & shrubs to bee close cutt by ye 
ground, the trees markt yearly on boath sydes, sufficient bridges 
to be made and kept over all marshy swampy & difficult dirty 
places & what ever else shall be tougt more necessary in and 
about ye highwayes aforesd.''^ 

William Penn on receiving his grant of the province 
of Pennsylvania, provided in his frame of government 
that the governor and provincial council should "at all 
times settle and order the situation of all cities, ports 
and market towns in every county, modeling therein all 
public buildings, streets and market places," and should 
"appoint all necessary roads and highways in the 
province."^ 

In the instrument executed by Penn July 11, 1681, 
known as "the conditions and concessions to the adven- 
turers and purchasers," it was agreed that — 

"Great roads from City to City not to contain less than 
forty feet in breadth shall be first laid out and declared to 
be for highways before the Dividend of acres be laid out for 
the purchaser and the like observation to be had for the streets 
in the towns and Cities that there may be convenient roads 

1 Records of the Court of New Castle, 364, also pages 143, 
169, 197. 

2 Charter and Laws of Pennsylvania, 95. 



EARLY COURTS OF PENNSYLVANIA. 249 

and streets preserved not to be encroached upon by any planter 
or builder that none may build irregularly to the damage of 
another."^ 

"On the arrival of the adventurers in this country," 
says Chief Justice Shippen, "it was found very prac- 
ticable to lay out streets in one great city, which was 
accordingly done, but quite impracticable to lay out 
the great roads or highways from city to city, as only 
one city was then contemplated. But as such great 
roads were to be laid out over the land of the pro- 
prietor alone and the purchasers were not to contribute, 
it w^as at length agreed and sanctioned in lieu of the 
impracticable plan settled in England, there should be 
an additional quantity of land granted to each pur- 
chaser without price or rent, to enable him to con- 
tribute without loss to such public roads as should there- 
after be found necessary for the use of the inhabitants."^ 
The quantity of six per cent was fixed as the permanent 
additional allowance for that purpose and provision 
w^as made therefor in the Acts of November 20, 1700,^ 
and of June 7, 1712.* Both of these acts were repealed 
by the queen in council, for reasons having nothing to 
do with this provision, but the custom was established, 
and it is the law of this state that the owner of land 
taken for the purpose of a public road, has no right to 
compensation for the land itself, but only for the im- 
provements, unless such a right is expressly conferred 
by statute.^ "The six per cent," in the words of Chief 
Justice Black, "belongs to the State and she may con- 

1 Charter and Laws of Pennsylvania, 467. 

2 McClenachan v. Curwen, 6 Binney's Reports, 509; 3 Yeates's 
Reports, 362 (18C2). 

3 II vStatutes at Large, 118. 
^ II Statutes at Large, 400. 

^ Pepper and Lewis's Digest of Decisions, Vol. 18, col. 13567. 



250 EARLY COURTS OF PENNSYLVANIA. 

stitutionally appropriate it to the use it was meant for. 
I speak now of land in its natural state. Where buildings 
are pulled down, or other valuable improvements de- 
stroyed in the making of a new road, the right to com- 
pensation is guaranteed to the owner by the constitu- 
tion. "* 

On the eighteenth of April, 1682, Captain Thomas 
Holme was commissioned as surveyor general of the 
province and proceeded to the Delaware, where, in the 
summer of that year, a site for the city of Philadelphia 
was chosen and the ground laid out in streets and lots, 
according to the general directions of Penn as shown 
on the plan usually referred to as Holme's map of Phila- 
delphia. ^ If the streets seem narrow, it must be remem- 
bered that the plan was conceived on a liberal scale for 
that time. When the city was laid out the. standard 
width of a street in London was two perches or thirty- 
three feet. Penn determined to make the streets wider 
in Philadelphia, so as to prepare for future growth, and, 
accordingly, established the standard of fifty feet, which 
is about three perches. Market street was laid out one 
hundred feet wide, Broad street one hundred and thir- 
teen feet. Arch or Mulberry street sixty-six feet or four 
perches. 3 

Penn, indeed, was determined that the city should 
not be cramped. *'Let every house," he said in his 
instructions to the commissioners to lay out the city, 
"be placed, if the person pleases, in the middle of its 
plat as to the breadth way of it, that so there may be 
ground on each side for gardens and orchards, or fields. 



^ Perryville 8c Z. P. R. Co. v. Thomas, 20 Pennsylvania Re- 
ports 91 (1852). 

^ Hazard's Annals of Pennsylvania, 555. 

3 Philadelphia v. Hinckley, 9 Pennsylvania District Reports 
125 (1900). 



EARLY COURTS OF PENNSYLVANIA. 251 

that it may be a green country town, which will never 
be burnt, and always be wholesome."^ 

In the charter of October 25, 1701,^ erecting the town 
into a city, Penn ordained that the streets of the city 
should forever continue as they were then laid out and 
regulated, and no special power was conferred upon the 
corporation to alter the plan. This, of course, applied 
to the old city, extending from Vine street on the north 
to Cedar (South) street on the south. The streets in 
the several outlying districts were, upon their incorpora- 
tion, plotted under special acts. 

In accordance with the Frame of Government, the 
provincial council assumed jurisdiction of the laying 
out of the main highways, and the minutes of that 
body are full of references to such matters. At a meet- 
ing of the council in 1686 — 

"A Petition Relating to highways was Read, upon wch the 
Councill agreed yt there should be a Sett time appointed for 
ye Councill to Inspect all y^ Business relating to ye Highways, 
and to Order yt y® Roads be Laid out in ye most proper and 
Convenient Places within this Province."^ 

The multiplicity of their duties, however, prevented 
them from taking entire charge of road cases, and by 
the Act of March 1, 1683,* it was provided that each > 
county court should "appoint and settle sufficient cart- \ 
ways to the most convenient landing places, in their ' 
respective counties, for public use and benefit." A 
distinction was thus made between the great provincial 
roads or king's highways and the local roads or cart- 
ways for the convenience of a special neighborhood. 
This is illustrated by two resolutions of the council. 



^ Hazard's Annals of Pennsylvania, 530. 

2 1 Dallas's Laws of Pennsylvania, Appendix 11. 

3 I Colonial Records, 136, 18, 3 mo. 1686. 
^ Charter and Laws of Pennsylvania, 139. 



252 EARLY COURTS OF PENNSYLVANIA. 

passed within a couple of months of each other. In 
one case the minutes read :— 

"The Petition of Henry Jones was Read, setting forth ye 
badness of the way from Moyamensin to Philadelphia. It was 
Referred to y^ County Court, who it's presiuned has power to 
appoynt Roads to Landing Places, to Court, & to Markett."^ 

In the other case : — 

"The Councill taking into Consideration ye Unevenesse of 
ye Road from Philadelphia to ye falls of Delaware. 

"Agreed that Robt Turner & John Barnes for ye County of 
Philadelphia, Arth. Cook and Tho. Janney for ye County of 
Bucks, with ye Respective Surveyrs of ye sd Counties, meet and 
Lay out a more Comodious Road from ye broad Street in Phila- 
delphia to ye falls aforesaid: ye time when is Referred to ye 
members Nominated. "^ 

From this time on the minutes of the council contain 
many references to public highways. Petitions were 
presented, sometimes by individuals, sometimes by the 
inhabitants of a neighborhood or township, complaining 
of the want of a road and praying for an order to lay 
out the same; if the petition was approved, the usual 
practice was to order that a warrant be directed to the 
surveyor general to lay out the road. The following is a 
typical case : — 

"Upon the memorial of the Honble, Andrew Hamilton, Esqr. 
Gor of the Jersies, & post master generall, &c. to the Gor & 
Council, Setting forth that it was formerlie with great difhcultie 
that the post could goe to Philadelphia by Land, to the great 
inconvenience of Correspondence & trade, and yt for remedie 
whereof, & accommodaon of Travellers, a ferry had been erected 
on Jersie side att a great chairge, but that the way was not yet 
returned from the landing on pennsilvania side to the king's 
road, wch is about three Quarters of a mile & easily cleared ; 
And therefore, Requesting the Governor & Council to approve 
the said road, and give the necessarie orders for clearing it. 

1 I Colonial Records, 142, 3. 7 mo. 1686. 

2 I Colonial Records, 148, 19, 9 mo. 1686. 



EARLY COURTS OF PENNSYLVANIA. 253 

"Ordered, that a warrantt be directed from the Governor 
to Thomas ff airman, Surveyor, To lay outt the king's road from 
dunck WiUiam's Landing, (the nearest & most convenient yt may 
be had, & Least prejudicial to the Lands and improvments of 
the nighbourhood,) Into the king's great road that Leads to 
Philadelphia, and that a Return in words, of the Courses & 
protracted figure thereof, be made Into the Secries office, 
in order to be filed & recorded there, as a finall Confirmaon 
thereof. And that the Justices of the peace for the County 
of Bucks, be by the Governor requested to order the overseers 
of ye Highways in that Coimty to make good & clear the same 
wt all expedion."^ 

The return of the surveyor general is as follows : — 

"By virtue of the Governor's speciall warrant, bearing 
date ye 28th day of October, 1696, to mee directed, psuant to 
an order of the Govervor & Council, granted upon the applicaon 
of Andrew Hamilton, esqr. Governor of ye Jersies & post mr 
generall, I have surveyed & Laid outt the king's roade from 
ye Landing of dunken Williams, on delaware, in the Countie of 
Bucks & province of pennsilvania, Beginning there at a Spanish 
oak att High water mark; thence sixtie foot broad, extending 
North North-west on each side the Line, dividing betwixt the 
Land of the sd duncken Williams & Nathaniel Harding, Two 
Hundred pearches; Thence in the sd duncken's Land, north 
eightie-One degrees, westerlie fourtie pearches; Thence north 
sixtie-foure degrees, westerly sixty-two pearches, Unto the 
old king's Roade which Leads to Philadelphia, & Hath been 
ancientlie Surveyed & Returned. "^ 

Occasionally an order for the laying out of a road is 
directed to a number of individuals, usually six, but 
these roads are not always described as king's roads, and 
would seem sometimes to belong to the class of roads 
ordinarily laid out by the courts, which the council, in a 
few instances, undertook to order, in the exercise of 
their supervisory functions still undefined. In fact 
there are instances where their order was for the con- 



I Colonial Records, 463, October 28, 1696. 
I Colonial Records, 467, October 31, 1696. 



254 EARLY COURTS OF PENNSYLVANIA. 

firmation of an old road merely, or to settle a disagree- 
ment between the parties interested and the viewers 
appointed by the county court. 

An interesting case was that of Robert Wade, the 
owner of a tract of land in Chester, the whole of which 
was taken by the grand jury for a public landing place 
and open street, without Wade's knowledge or consent 
and without offering him any compensation. Upon his 
protesting the justices stated that they "Seazed it for 
the king," whereupon he petitioned the council, stating — 

"That the petitionr being a freeman, cannot by Law be 
disseized of his freehold but by the Judgment of his 12 equalls, 
by a Legall tryall, and which act of the Court has been to the 
petitioner's great Loss & damage, who is daylie threatened to 
have what hee shall build on sd his Land pulled downe and 
throwen in the sd creek, and therfor, requesting such remedie 
& redress in the premisses as is agreeable to Justice & equitie."^ 

The council sent to the court for a copy of the pro- 
ceedings, and on further debate it was resolved that the 
action of the grand jury was unjustified and an order 
made that the petitioner be no further molested in the 
peaceable possession of his property.^ 

This isolated attempt by the grand jury to assume the 
right of eminent domain having been promptly frus- 
trated, the real doubt as to how the Act of 1683 was 
to be interpreted was resolved by a further act defining 
the practice in road cases, passed May 10, 1699.^ This 
was re-enacted in almost the same language in the Act 
of November 27, 1700,^ as follows, the only substantial 
additions being the clauses bracketed : — 

"Section I. Be it enacted by the Proprietary and Governor, 
by and with the advice and consent of the freemen of this 

1 I Colonial Records, 402, February, 13, 1693-4. 

2 I Colonial Records, 441, May 25, 1695. 

3 Charter and Laws of Pennsylvania, 285. 
* II Statutes at Large, 68. 



EARLY COURTS OF PENNSYLVANIA. 255 

Province and Territories in General Assembly met, and by the 
authority of the same, That all the King's highways or public 
roads within this province or counties annexed, shall be laid 
out by order of the governor and council for the time being, 
which roads shall be recorded in the council book, with the 
courses thereof, as near as may be done. 

"Section 11. And be it further enacted by the authority 
aforesaid, That the justices of each county court within this y/ 
government shall, and by virtue of this act have power, as 
often as they find needful, in open court to order and appoint 
six sufficient housekeepers of the neighborhood inhabiting near 
the place where complaint is made for want of a road or cartway 
unto the public road, who shall view the said place; and if the 
said housekeepers, or any four of them, are satisfied that there 
is occasion for a road or cartway to be laid out, according to 
the complainant's or complainants' desire, then they shall and 
may lay out the same, [in and through such convenient places as 
they shall think may be least to the damage or inconveniency 
of the neighbors or parties concerned, and least injurious to 
the settlements thereabouts;] and of such breadth as the justices 
shall order and appoint, so that it exceed not fifty feet; and 
shall make return thereof under their hands to the next county 
court after it is laid out; and if then and there the justices 
approve the same, it shall at the same court be entered upon 
record, and from thenceforth be taken, deemed and allowed to 
be a lawful road or cartway from that time forwards. 

"[Provided, That no such road shall be carried through any 
man's improved lands but where there is a necessity for the 
same; and where that appears, the respective county courts . 
shall appoint six indifferent men to view and adjudge the value \ 
of so much of such improved lands as shall be taken up for the 
use aforesaid, and the value thereof shall be paid to the owner 
of the said land out of the respective county stock.] 

"And to prevent any difference that may arise among neighbors 
about roads or cartways laid out by order of the governor and 
council, or any of the county courts in this government, and 
which are or shall be entered upon record, either before or 
after the making and publishing of this act: 

"Section IIL Be it enacted by the authority aforesaid. That 
all such roads and cartways as before mentioned, shall be 
taken, deemed and allowed to be free, open and lawful roads 
and cartways from the time they are so laid out and recorded 
as aforesaid." 



256 EARLY COURTS OF PENNSYLVANIA. 

This act was the real foundation of the system of 
laying out and opening township roads in Pennsylvania. 
Its salient features were the provision for the appoint- 
ment of six viewers to report on the necessity for the 
road before confirmation by the court, and the further 
provision that, where it became necessary to carry the 
road through improved lands, six viewers should be 
appointed to adjudge the value of the improvements so 
taken, which was to be paid for out of the county stock. 

By a supplementary act of February 20, 1735,^ the 
justices of the quarter sessions were empowered, on the 
application of any person for a road from the plantation 
or dwelling place of such person to or from a highway, 
to direct a view, and if such road be found necessary, 
to order it laid out, not exceeding thirty-three feet in 
width, the value of the improved land taken to be paid 
for by the person at whose request it was laid out, who 
was also to clear and maintain the same. 

The result of this legislation was to establish three 
kinds of roads : (1) The great provincial roads or king's 
highways, laid out by order of the provincial council; 
(2) Cartways leading into public roads, laid out by order 
of the justices of the county courts upon the report of 
viewers, and (3) Private roads, likewise laid out by order 
of the justices upon the report of viewers.^ The last 
were common roads for the use not only of the persons 
for whom they were laid out but for all who should have 
occasion to travel to the plantations of such persons. 
Some interesting information as to the procedure may 
be gleaned from the minutes of the council, where road 
matters were frequently under consideration. Thus, 
on October 7, 1737, on consideration of a petition of 

1 IV Statutes at Large, 296. 

^ McClenachan v. Curwen, 6 Binney's Reports, 509; s. c. 3 
Yeates's Reports 362 (1802). 



EARLY COURTS OF PENNSYLVANIA. 257 

sundry inhabitants of Lancaster County, setting forth 
the want of a high road from the town of Lancaster to 
Coventry Iron Works on French Creek in Chester 
County and praying for the appointment of proper 
persons to lay out the same, the council granted the 
prayer of the petition and directed that six persons 
appointed from Lancaster County or any four of them 
view and lay out a high road to the division line between 
Lancaster and Chester counties; that six persons ap- 
pointed from Chester County, or any four of them, there 
join the others and agree on the most convenient passage 
over the division line and continue the road to the 
terminus and that the twelve, or eight of them, make 
return to the council for confirmation.^ The duties of 
the viewers, it will be noticed, were limited to their 
respective counties. 

On March 24, 1736-7, an elaborate draft of a road 
from Harris's Ferry on the Susquehanna River to 
Kennison's plantation in Chester County was returned 
by the viewers, eleven of whom signed the report.^ A 
petition by some inhabitants of Chester County was pre- 
sented, objecting to the road as laid out, and praying for 
a review. Other citizens supported the report, and after 
hearing the petitioners for the review withdrew their 
petition and the road was confirmed as laid out. Never- 
theless, the parties being still dissatisfied and the quarter 
sessions of Chester County being of opinion that the 
road as laid out was impracticable, new petitions were 
presented to the council for and against the road. After 
full argument the council, finding that all the objec- 
tions were to that part of the road in Chester County, 
appointed six persons from that county to review the 
road from the county line and make such alterations to 

1 IV Colonial Records, 247, October 7, 1737. 
* IV Colonial Records 181, March 24, 1736-7. 



258 EARLY COURTS OF PENNSYLVANIA. 

the best of their judgment "as may truly answer the 
intention of accommodating both Country and 
travellers."^ Upon the report of the reviewers the fol- 
lowing order was made : — 

"The Board, on due Consideration had of the said Return, 
and of the_ Draught accompanying it, do approve, establish, & 
confirm the Road aforesaid as now laid out and reviewed, 
agreeable to which Return the Confirmation formerly made by 
an Order of Council of the twenty-fourth day of March, 1736-7, 
is directed to be amended, and the said Road is hereby declared 
to be the King's Highway or Publick Road, and It is Recom- 
mended to the Justices of the Peace for the County of Chester, 
that they, at their next ensuing Quarter Sessions, issue Direc- 
tions to the Overseers of the Highways for causing the said 
Road to be opened & cleared, so that it may be rendred commodi- 
ous for the Publick Service. "^ 

The foregoing record is interesting as showing the 
practice of granting reviews in the case of provincial as 
well as county roads, and other instances will be found 
in the minutes of the council. In the case of a road 
laid out by the quarter sessions it was held in 1764 that 
a review, though not taken notice of in the act of assem- 
bly, had always been granted and had become a matter 
of right. 3 By the Act of April 6, 1802,* the quarter 
sessions were required to grant a review in all cases, 

1 IV Colonial Records, 283, March 22, 1737-8. 

2 IV Colonial Records, 287. May 15, 1738. 

3 King's Road, 1 Dallas's Reports 11 (1764). In re Road in 
Chester County, Supreme Court Docket No. 4, page 37, Septem- 
ber Term, 1764, on certiorari the order is reversed "for refusing 
to grant a review, and reviewers appointed." Is this the same 
case? Lewis Gordon, writing to Richard Peters, March 18, 
1758, signified his intention to apply for a review of a road, but 
observed that the practice was declaimed against, except where 
fraud appeared. VII Pennsylvania Archives (2 Series), 254. 

*3 Smith's Laws of Pennsylvania, 521, § 22. See also § 25 
of the act of June 13, 1836, P. L. 551. 



EARLY COURTS OF PENNSYLVANIA. 259 

prov ded the application was made at the next court 
after the report had been made on the first view. The 
appointment of re-reviewers is discretionary. 

The Act of April 6, 1802, just referred to, was a gen- 
eral road law which replaced the older legislation with 
greater elaboration of detail. It, in turn, was repealed 
by the general road law of June 13, 1836,^ an act, drafted 
by the commissioners to revise the civil code, which 
embodied the previous legislation and practice in a clear 
and comprehensive form. This act, with its amend- 
ments, is still in force and is the only general road law 
applicable to all parts of the commonwealth, but its 
operation has been greatly restricted by local and special 
acts. 

Briefly stated the Act of 1836 provides that the court 
of quarter sessions, on being petitioned to grant a view 
for a road within the county, shall appoint six viewers 
(since reduced to three), ^ who, if they agree that there is 
occasion for the road, are to proceed to lay out the 
same so as to do least injury to improved property and 
also meet the desire of the petitioners. The viewers are 
required to report at the next term of court, annexing 
a draft of the road, stating the courses and distances and 
briefly noting the improvements and, when practicable, 
they are not to lay out the road at an elevation exceed- 
ing five degrees except at crossings of ravines and 
streams. If the court approve the report they must 
direct of what breadth the road shall be opened^ and at 
the next court the whole proceedings are to be entered 
of record and the road deemed and allowed to be a 



ip. L. 551. 

2 Act of May 8, 1889, P. L. 129. 

^ Section 5 of the act fixed the maximum breadth of a public 
road at 50 feet and of a private road at 25 feet. The maximum 
breadth of a public road is fixed at 80 feet by the act of June 7, 
1907, P. L. 452. 



260 EARLY COURTS OF PENNSYLVANIA. 

public road or highway or a private road as the case 
might be. 

Public roads were to be kept in repair at the expense 
of the township; private roads at the expense of the 
petitioner. Reviews might be granted if applied for 
at or before the next term of court after the report on 
the first view. The owner of any land through which 
the road was laid out might, within one year from the 
opening, petition for the appointment of six viewers to 
assess his damages, who were to report to the next court 
the injury done, and if their report was approved the 
amount assessed was to be paid out of the county stock. 

The Act of May 14, 1874,^ following various prior 
local acts, provides that the viewers appointed to lay 
out the road shall endeavor to procure releases from 
property owners and shall assess the damages sustained, 
thus combining the laying out of roads and the assess- 
ment of damages in one view, and obviating the neces- 
sity of a separate view for damages, except in such 
counties as may have local laws inconsistent with the 
Act of 1874. These proceedings seem simple enough, 
but a glance at the hundreds of bitterly contested cases 
would indicate otherwise. Every step, in fact, has been 
the subject of protracted litigation and voluminous 
opinions, which must be carefully studied at every stage 
of this intricate game of the law. 

The general road law of 1836 conferred no authority 
on the quarter sessions to grant a view to widen a road 
or street, but this jurisdiction was conferred by the Act 
of May 8, 1850.2 

As to the vacation of roads, the Act of 1836 provided 
that the quarter sessions should have power, on petition, 
to change or vacate the whole or any part of a public or 

ip. L. 164, § 1. 

2 P. L. 713; Church Road, 5 Watts & Sergeant's Reports, 200 
(1843). 



EARLY COURTS OF PENNSYLVANIA. 261 

private road which had become inconvenient, useless or 
burdensome, and to vacate and annul a road laid out, 
but not opened, on petition of a majority of the original 
petitioners. No authority was given to vacate a road 
confirmed and partly opened, but this defect w^as reme- 
died by the Act of May 3, 1855,^ which, however, ex- 
pressly excepted state roads, authorized by special law, 
and streets in incorporated cities and boroughs. The 
Act of May 8, 1854,^ conferred jurisdiction on the 
quarter sessions to vacate any private or public lane, 
alley, road or highway whenever the same, by reason of 
forming of town plots or otherwise, had become useless 
to the public and those having lands bounding thereon. 

"Whenever the whole or a part of a road is vacated, 
changed and supplied by a new one, the old road cannot 
be closed until the road laid out to supply its place is 
actually opened and made.^ 

With the dissolution of the provincial government in 
1776 the jurisdiction of the council in matters relating 
to the laying out of highways came to an end and the 
constitution adopted in that year conferred no special 
jurisdiction in such affairs upon its successor, the 
supreme executive council. As a consequence, the 
great roads through the sparsely inhabited sections of 
the state, where the settlers were unwilling or unable 
to bear the expense of constructing such highways as 
the public service required, were authorized by special 
acts of the legislature. Such an act was that of Septem- 
ber 21, 1785,^ directing the president, or in his absence 
the vice-president, in council to appoint three free- 

^ P. L. 422; Greenwich Township Road, 11 Pennsylvania Re- 
ports, 186 (1849). 

2 P. L. 645. 

^ Bridgeport & N. C. T. Road, 171 Pennsylvania Reports, 
312 (1895). 

^ 2 Dallas's Laws of Pennsylvania, 389. 



262 EARLY COURTS OF PENNSYLVANIA. 

holders as commissioners to view, survey and lay out a 
state highway from Miller's Springs in Cumberland 
County to Pittsburg, of the breadth of fifty feet, and to 
report to the president and council, who were to confirm 
the same or order a review. The highway, when so 
established, was to remain a state highway and the 
courses and distances to be entered in the council book. 
An appropriation of £2000 was made for this enterprise. 
This road was in part laid out, and confirmed by the 
council November 24, 1787,^ as far as Bedford, but a 
review was Ordered of the other part from Bedford to 
Pittsburg. By a resolution of the assembly of Novem- 
ber 21, 1788, the council was ordered to draw for the 
expenses of the review, and, accordingly, by order of 
the council March 14, 1789,^ reviewers were appointed, 
whose report was confirmed September 28, 1790.^ 

Many state roads were laid out by commissioners 
under similar acts and it cannot be doubted that, in the 
early days, such proceedings were of use where a road 
was desired through several counties, whose conflicting 
demands it was difficult to reconcile. But in later years 
the power of the legislature was greatly abused and the 
constitution of 1874 has forbidden the passage of any 
local or special law authorizing the laying out, opening 
or altering of highways. * 

As for the local acts containing variations from the 
general road law, it would be useless to attempt to 
summarize them. A list of such acts, published in 3 
Pennsylvania County Court Reports, 401, covers eight 
pages of small type and is really appalling. And yet 
this list does not include Philadelphia County, which, 

1 15 Colonial Records 331, November 24, 1787. 

2 16 Colonial Records 26, March 14, 1789. 

3 16 Colonial Records 466, September 28, 1790. 

* Constitution of Pennsylvania, 1874, Article III, § 7. 



EARLY COURTS OF PENNSYLVANIA. 263 

prior to the consolidation in 1854, included, besides the 
city proper, six boroughs, ten incorporated districts 
and thirteen townships, many of which had their own 
highway systems. ^ 

In Philadelphia, as previously stated, the principal 
streets were laid down by the surveyor general on the 
original town plan and no special power was conferred 
on the corporation to change that plan. The Act of 
April 15, 1782,2 declared that streets theretofore opened 
to public use by private persons or directed to be laid 
out by the supreme executive council should be con- 
sidered and deemed public highways. The Act of 
March 25, 1805, empowered the quarter sessions, on 
petition, to grant views for the laying out and opening 
of streets in Philadelphia. This act was supplied and 
repealed by the general road law of 1836, which instituted 
a rather cumbersome method of summoning road viewers 
and was in turn repealed and supplied by the Act of 
March 16, 1866.^ The streets in the districts first incor- 
porated were directed by local acts to be surveyed and 
laid out by the commissioners of the districts, who were 
required to return a general plan (in the case of South- 
wark,to the supreme executive council; in the case of 
Spring Garden, to the quarter sessions)*, which, on 
approval, was recorded. The subsequent opening of 
the streets, so laid out, was on petition of a stated 
number of freeholders to the quarter sessions. This 
system, with minor modifications, was extended to the 
other municipalities by local acts which will be found 
in Price's Index to Local Legislation in Pennsylvania. 

^ Addick's Philadelphia Highway Acts. 

2 2 Smith's Laws of Pennsylvania, 48, § 10. 

3 P. L. 224. 

^ Act of September 29, 1787, 2 Smith's Laws of Pennsylvania, 
435; Act of March 22, 1813; 6 Smith's Laws of Pennsylvania, 37. 



264 EARLY COURTS OF PENNSYLVANIA. 

Section 27 of the Act of February 2, 1854/ by which 
the various municipal corporations in Philadelphia 
County were consolidated into one city, established a 
board of surveyors who, by an amendment passed in 
the following year, ^ were directed to cause a survey of 
the city plot to be completed. By the Act of June 6, 
1871,^ the board of surveys is empowered to examine 
and confirm or reject all plans of survey or revision of 
plans made under direction of councils. 

Streets in Philadelphia may be opened either by ordi- 
nance of councils or by the quarter sessions. Under the 
Act of April 21, 1855,* councils may order any street 
laid down on the city plan to be opened, whenever they 
deem the public exigency to demand it, giving three 
months' notice to the owner. This act, it has been said, 
was intended only for special cases requiring speedy 
action, but, as councils are the judges as to when the 
exigency exists, there is no review of their decision, 
and, in practice, this is the usual method pursued. 
The quarter sessions has concurrent jurisdiction, by 
proceedings on petition, to order the opening of a street 
laid down on the city plan, but the court will not appoint 
viewers when the opening of the street is so inadvisable 
that confirmation of a report favorable to an opening 
would be withheld.^ When a plotted street is opened 
by ordinance, a jury of six viewers is appointed by 
the quarter sessions to assess the damages, and if the 
proceedings are begun in that court, the same viewers 
pass on the damages as report on the necessity for open- 

^P. L. 21. 

2 Act of April 21, 1855, P. L. 264, § 4. 

3 P. L. 1353. In re Plan 166, 143 Pennsylvania Reports, 414 
(1891). 

* P. L. 264, § 7, Large v. Philadelphia, 35 Pennsylvania Re- 
ports, 231 note (1859). 

» Twenty- Eighth Street, 102 Pennsylvania Reports, 140 (1883). 



EARLY COURTS OF PENNSYLVANIA. 265 

ing. The general Act of May 8, 1889/ providing that 
juries of view shall consist of three persons, does not 
apply to juries appointed by the quarter sessions of 
Philadelphia nor is the jurisdiction of that court affected 
by the general Act of May 16, 1891. ^ The juries ap- 
pointed to assess damages are also to assess benefits upon 
the properties whose value is enhanced by the opening, 
which benefits are to be collected by the city as in other 
cases of municipal assessments. 

While the matter is of academic rather than practical 
interest, it is curious to note that proceedings might 
still be brought to open streets laid down on the plans 
of the old incorporated districts under the special systems 
prevailing in those districts, it having been held as late 
as 1878,^ that the clause in the Act of 1813 relating to 
the opening of streets in the district of Spring Garden 
was still in force. It is highly improbable that such a 
proceeding could be carried to a successful issue, as these 
acts constitute the forgotten lore of a previous genera- 
tion, and the courts are increasingly inclined to leave 
such matters to the municipal authorities who must 
devise the means of paying for public improvements. 

As to changes of grade in Philadelphia, in section 27 
of the consolidation act there was a proviso that com- 
pensation should be made for damage to private prop- 
erty resulting from any changes in the plans adopted 
under that section, but this was held to apply only to 
alterations and revisions of grades previously established 
by the old city or other municipalities before the con- 
solidation. Hence, a paper change made in a grade 
established after the consolidation gave the land owner 
no right to proceed in the quarter sessions, his remedy 

ip. L. 129. 

2 P. L. 75; Orthodox Street, 1 Pennsylvania District Reports, 
37 (1892). 

3 Parrtsh Street, 12 Philadelphia Reports, 638 (1878). 



266 EARLY COURTS OF PENNSYLVANIA. 

being under Article XVI, § 8 of the constitution of 1874 
upon the physical change. Prior to 1891 this remedy 
was enforceable by action of trespass. Since the passage 
of the Act of May 16, 1891, petitions for the assessment 
of damages for changes of grade are assigned to the 
common pleas and three viewers appointed.^ 

Space will not permit a reference to many other inter- 
esting features in Philadelphia's local systemi and in the 
local systems of other parts of the state. That of Pitts- 
burg has had an important influence on subsequent 
general legislation on the subject of streets in munici- 
palities. By a series of acts, beginning with that of 
January 6, 1864,^ authority to lay out, open and widen 
streets in Pittsburg was vested in councils, with ver}^ 
extensive powers in the matter of assessing and collect- 
ing assessments for benefits. These powers, having 
been exercised in an arbitrary and reckless manner, were 
resisted by property owners, and certain acts framed to 
strengthen the hands of the municipal authorities hav- 
ing been declared unconstitutional, the whole matter 
was thrown into great confusion.^ To remedy this, a 
series of curative acts was passed, concluding with the 
Act of May 16, 1891,* which, while in form and intent a 
general act, is but a part of the series and manifestly 
intended as a blanket supplement to the others, to 
supply deficiencies and confirm doubtful powers under 
existing legislation. This act was held applicable to 
municipal corporations generally, but does not super- 
sede previous legislation or confer new rights, such as 



1 In re Plan 166, 143 Pennsylvania Reports, 414 (1891). 

2 P. L. 1131. 

3 Wyoming Street, 137 Pennsylvania Reports, 494 (1891); 
Pittsburg's Petition, 138 Pennsylvania Reports, 40 (1891); 
Donley v. Pittsburg, 147 Pennsylvania Reports, 348 (1892). 

^ P. L. 75; Howell v. Morrisville Borough, 212 Pennsylvania 
Re-ports, 349 (1905). 



EARLY COURTS OF PENNSYLVANIA. 267 

the right to damages for the vacation of a pubHc high- 
way which, ordinarily, does not exist unless conferred 
by a special law. By reason of its many practical 
features the Act of 1891 may in time become the basis 
of a uniform system. 

Boroughs incorporated under the general borough 
Act of April 3, 1851,^ are authorized to ordain and lay 
out streets within the borough limits, but in boroughs 
incorporated prior to the general borough act and 
having no special provisions on the subject in their 
charters, the jurisdiction to lay out streets is in the 
quarter sessions under the general road law. The Act 
of 1891 may be used in boroughs as an alternative 
method of proceeding. ^ 

The counties of Erie and Bradford have under their 
local acts a system radically different from the general 
road law.^ By these acts the authority to lay out roads 
is vested in the road commissioners of the townships, 
who may be required to view a proposed route for a 
road on petition of tw^elve citizens of the township. 
From their action any person affected may appeal to a 
justice of the peace, who, if he finds there is good cause 
of complaint, issues a summons to six disinterested 
citizens as jurors, and the decision of the justice and 
jurors is reviewable only by certiorari. 

Article XVI, § 8 of the constitution of 1874 secures 
an appeal from any preliminary assessment of damages 
and a trial by jury whenever private property is taken, 
injured or destroyed by a municipal or other corpora- 
tion, or an individual invested with the privilege of tak- 



1 P. L. 230. 

2 Dorrance v. Dorrancetown Borough, 181 Pennsylvania Re- 
ports, 164 (1897). 

3 Acts of April 13, 1843, P. L. 218; April 5, 1844, P. L. 200; 
March 26, 1846, P. L. 175; April 15, 1857, P. L. 205. See Act of 
July 2, 1901, P. L. 607, § 2. 



268 EARLY COURTS OF PENNSYLVANIA. 

ing private property for public use. The Act of June 13, 
1874/ is intended to carry this provision into effect, 
where no sufficient provision for a jury trial already 
existed. Counties and townships having been held not 
to be municipal corporations within the Act of 1874, it 
was provided by the Act of May 26, 1891, 'that an appeal 
might be taken to the common pleas by any party 
aggrieved by the decree of any court of quarter sessions, 
confirming the report of viewers appointed to assess 
damages for the opening, condemning or change of grade 
of any street, road or highway, for a trial of the ques- 
tion of damages by a jury according to the course of 
common law. 

As to damages, an allusion has been made to the 
effect of the six per cent allowance for roads in original 
grants by the proprietors or the commonwealth. The 
constitution of 1790 contained no restriction on the 
taking of private property for public use except that in 
Article IX, § 10, it was provided that no man's prop- 
erty should be taken or applied to public use "without 
just compensation."^ A smiliar provision was contained 
in the constitution of 1838 and is embodied in the bill 
of rights to the constitution of 1874 (Article I, § 10). 
Besides this, Article VII, § 4, of the constitution of 1838 
provided that the legislature should not invest any 
corporate body or individual with the privilege of taking 
private property for public use, without requiring com- 
pensation to be made or secured to the owner of such 
property. Under this clause it was held that there was 
no liability for consequential injuries.^ To remedy this 



1 P. L. 283. 

2 P. L. 116; Pusey's Appeal, 83 Pennsylvania Reports, 67 
(1877). 

^ Pepper and Lewis's Digest of Decisions, Vol. 18, col. 31570. 
4 O'Connor v. Pittsburg, 18 Pennsylvania Reports, 187 (1851). 



EARLY COURTS OF PENNSYLVANIA. 269 

the constitution of 1874, in Article XVI, § 8, added 
"injured and destroyed" to the words "property taken," 
and compensation may now be recovered in the case of 
any property sufficiently near the improvement to make 
the injury proximate, immediate and substantial.^ 

In assessing damages in road cases, the measure of 
damages, stated in the briefest possible terms, is the 
difference in the market value of the property injured 
before and after the improvement. Into this labyrinth, 
externally so fair, it would be inadvisable to penetrate, 
except to remark that, as a practical question, it is 
extremely difficult to obtain expert witnesses with suffi- 
cient powers of generalization to state a difference in 
market values, as a psychic phenomenon or unrelated 
idea, without betraying on cross examination the inad- 
missible sources from w^hich their estimates are derived. 

In response to the demand for good roads, which of 
late years has become more insistent, recent legislation 
has been directed to the improvement of the condition 
of the public highways throughout the state. A begin- 
ning was made in the Act of June 26, 1895,^ which author- 
ized the county commissioners with the approval of the 
grand jury and court of quarter sessions, to cause any 
particular main highway to be improved, and for that 
purpose to re-locate, open, straighten, widen or alter 
the same, the damage to property to be assessed by 
viewers. The highway when so improved is a town- 
ship or borough road, the duty of maintaining which 
rests on the locality. By an amendment of April 
22, 1905,^ the county commissioners are required 
first to cause to be laid out, surveyed and adopted a 
system of main thoroughfares, taking into consideration 

1 Mellor V. Philadelphia, 160 Pennsylvania Reports, 614 
(1894); Melon Street, 182 Pennsylvania Reports, 397 (1897). 

2 P. L. 336. 

' P. L. 290, since amended by the Act of May 13, 1909, P. L. 527. 



270 EARLY COURTS OF PENNSYLVANIA. 

the needs of all parts of the county, a plan of such 
system is to be approved and recorded and thereafter 
all applications to the quarter sessions for the improve- 
ment of a road under the act are to be restricted to the 
development of such system. 

By the Act of April 15, 1903,^ a state highway depart- 
ment was" established, with a commissioner at its head, 
who is authorized to co-operate with the counties and 
townships in the reconstruction and improvement of the 
principal highways according to the plans adopted by 
the department, the cost to be apportioned and borne, 
sixty-six and two thirds per cent by the state, sixteen 
and two thirds per cent each by the count}^ and town- 
ship, provided that amiount appropriated for state aid 
shall be apportioned among the counties according to 
their road mileage. Six million five hundred thousand 
dollars was appropriated to carry out this act, to be 
expended during six years, ten per cent of which was 
to be set aside for the purpose of maintenance where the 
conditions warranted the affording of state aid for such 
purposes. All highways constructed or improved under 
the provisions of this act are to be known as State 
Highways. 

In passing rapidly over our system of road law apolo- 
gies for the omission of much that is of interest as well 
as of importance are unnecessary. The subject has 
reached dimensions that can hardly be contained in a 
text book of reasonable size. The extraordinary num- 
ber and variety of the statutes, with the decisions 
interpreting them, might drive a Bentham to despair, 
but has caused less inconvenience than might reason- 
ably be expected, for the reason that the bar of the 
state is an aggregation of county bars, each familiar with 
the local practice and with few opportunities to test 

^ P. L. 188, supplied by the Act of May 1, 1905, P. L. 318. 



EARLY COURTS OF PENNSYLVANIA. 271 

the disadvantages of its own, or the advantages of 
rival systems. Consequently no bar sentiment in favor 
of uniformity and simplicity has developed, and while 
there is no inherent difficulty in drafting a code, or series 
of codes, which, with the repeal of all local acts, would 
reduce the subject to order, local prejudices and con- 
servatism would probably oppose such a movement. 
Minor reforms suggest themselves. The assignment of 
road cases to the quarter sessions, in accordance with 
colonial tradition, possesses no advantages, and is con- 
trary to the modern tendency to confine the activities 
of that court to criminal matters. 

As appeals from aw^ards of viewers to the common 
pleas for a jury trial are the rule rather than the excep- 
tion, the proceedings should have their inception in the 
latter court, as in change of grade cases under the Act of 
1891. There is no reason why six view^ers should be 
appointed to assess damages for the opening of streets 
in Philadelphia, when three are sufficient in change of 
grade cases, except to gladden the hearts and replenish 
the purses of the additional jurors. The method of 
presenting testimony as to values by expert witnesses is 
far from satisfactory, but that difficulty belongs to the 
law of evidence and is not confined to road cases. 

Time may improve our roads and our road laws, but 
for the present no attorney delighting in the sharp points 
of the law need mourn for a field for his talents. 

Criticism is frequently leveled at the adventitious 
growth of our law, at its want of system, its atavistic 
tendencies. But is this not true of other sciences as 
well? Can we not detect traces of folklore in religion, 
of magic in medicine? The deeper the foundations of a 
science the more securely is it buttressed by the rubbish 
of the ages. 

Communities do not grow according to preconceived 
plans, nor does progress necessarily point to a prison 



272 EARLY COURTS OF PENNSYLVANIA. 

lockstep march toward a utopia of automatic activities. 
But in law, as in other sciences, there must be periodic 
revision of the accumulated material, otherwise the prin- 
ciples of social conduct will be lost sight of in a mass of 
unrelated and arbitrary rules. Statutes that are obso- 
lete should be repealed, conflicting statutes reconciled, 
and ambiguous statutes restated. Local and special 
provisions that really serve no useful purpose should, 
in the interest of orderly administration, be replaced by 
general acts. 

The present state of the statute book, representing as it 
does the accumulations of two centuries, is far from 
creditable to a community that claims to be progressive, 
and should be subjected to systematic revision, if only 
for the sake of clearness. The responsibility for this 
condition does not rest wholly upon the bar nor, in fact, 
upon any one class in the community. It results from 
the rapidity of our material development and the recur- 
ring necessity for immediate legislation, coupled with a 
fallacious belief in new statutes as a panacea for all the 
ills of the state. The disinclination to revise what has 
already been enacted is in part the result of an inherited 
conservatism, an unwillingness to tamper with what is 
written although imperfectly understood. Purely selfish 
interests, too, may unite to disfigure or destroy a well 
conceived plan for the unification of a branch of the 
statute law, as happened at the legislative session of 
1909 when the proposed school law was cut to pieces 
to satisfy conflicting local claims. 

Since the days of Bradford and Franklin the common- 
wealth has relied on private enterprise for compilations 
and digests of the statute law. But these, however 
creditable to their editors, cannot take the place of a 
systematic revision authorized by the state and ratified 
by legislative enactment. The private editor cannot 
say that any law is obsolete, he must print what he finds. 



EARLY COURTS OF PENNSYLVANIA. 273 

If he undertakes to decide that an act is repealed or 
supplied by implication and omits it from his text, there 
is no assurance that his opinion will be endorsed by the 
courts. 

While road law, owing to its local development, is a 
glaring example of the confusion that in time creeps 
into the statute book, it is by no means the only title 
that requires attention. The laws relating to corpora- 
tions, municipalities, taxation, as well as other subjects, 
are in need of revision and unification. The education 
of the public to the economy of well drafted and prop- 
erly classified statutes may be slow, but a progressive bar 
should assist in that education and be prepared to lend 
encouragement to any reasonable and practical plan 
for a systematic analysis and rearrangement of our 
statute law. 



APPENDIX 



ARTICLE V OF THE CONSTITUTION OF 
PENNSYLVANIA. 

In effect January 1, 1874. 



THE JUDICIARY. 

The Courts. 

Section 1. The judicial power of this Commonwealth shall 
be vested in a Supreme Court, in courts of Common Pleas, 
courts of oyer and terminer and general jail delivery, courts 
of quarter sessions of the peace, orphans' courts, magistrates' 
courts, and in such other courts as the General Assembly may 
from time to time establish. 

Supreme Court — Tenure of Judges — Chief Justice. 

Section 2. The Supreme Court shall consist of seven judges 
who shall be elected by the qualified electors of the State at 
large. They shall hold their offices for the term of twenty-one 
years, if they so long behave themselves well, but shall not be 
again eligible. The judge whose commission shall first expire 
shall be chief justice, and thereafter each judge whose com^mis- 
sion shall first expire shall in turn be chief justice. 

Supreme Court. 

Section 3. The jurisdiction of the Supreme Court shall ex- 
tend over the State, and the judges thereof shall, by virtue of 
their offices, be justices of oyer and terminer and general jail 
delivery in the several counties; they shall have original juris- 
diction in cases of injunction where a corporation is a party 
defendant, of habeas corpus, of mandamus to courts of inferior 
jurisdiction, and of quo warranto as to all officers of the Com- 
monw^ealth whose jurisdiction extends over the State, but shall 
not exercise any other original jurisdiction; they shall have 
appellate jurisdiction by appeal, certiorari or writ of error in all 
cases, as is now or may hereafter be provided by law. 

Common Pleas Courts. 

Section 4. Until otherwise directed by law, the courts of 
common pleas shall continue as at present established, except 



276 APPENDIX. 

as herein changed; not more than four cotinties shall, at any- 
time, be included in one judicial district organized for said 
courts. 

Judicial Districts — Associate Judges. 

Section 5. Whenever a county shall contain forty thousand 
inhabitants it shall constitute a separate judicial district, and 
shall elect one judge learned in the law ; and the General Assembly 
shall provide for additional judges, as the business of the said 
districts may require. Counties containing a population less 
than is sufficient to constitute separate districts shall be formed 
into convenient single districts, or, if necessary, may be attached 
to contiguous districts as the General Assembly may provide. 
The office of associate judge, not learned in the law, is abolished 
in counties forming separate districts; but the several associate 
judges in office when this Constitution shall be adopted shall 
serve for their unexpired terms. 

Common Pleas Courts in Philadelphia and Allegheny 
Counties. 

Section 6. In the counties of Philadelphia and Allegheny 
aU the jurisdiction and powers now vested in the district courts 
and courts of common pleas, subject to such changes as may 
be made by this Constitution or by law, shall be in Philadelphia 
vested in four, and in Allegheny in two, distinct and separate 
courts of equal and co-ordinate jurisdiction, composed of three 
judges each ; the said courts in Philadelphia shall be designated 
respectively as the court of common pleas number one, number 
two, number three and number four, and in Allegheny as the 
court of common pleas number one and number two, but the 
number of said cotirts may be by law increased, from time to 
time, and shall be in like manner designated by successive 
numbers; the number of judges in any of said courts, or in any 
county where the establishment of an additional court may be 
authorized by law% may be increased from time to time, and 
whenever such increase shall amoimt in the whole to three, such 
three judges shall compose a distinct and separate court as 
aforesaid, which shall be numbered as aforesaid. In Philadelphia 
all suits shall be instituted in the said courts of common pleas 
without designating the number of said court, and the several 
courts shall distribute and apportion the business among them 
in such manner as shall be provided by rules of court, and each 
court, to which any suit shall be thus assigned, shall have 
exclusive jurisdiction thereof, subject to change of venue, as 



APPENDIX. 277 

shall be provided by law. In Allegheny each court shall have 
exclusive jurisdiction of all proceedings at law and in equity, 
commenced therein, subject to change of venue as may be 
provided by law. 

Prothonotary of Philadelphia — Court Dockets. 

Section 7. For Philadelphia there shall be one prothonotary' s 
office, and one prothonotary for all said courts to be appointed 
by the judges of said courts, and to hold ofhce for three years, 
subject to removal by a majority of the said judges; the said 
prothonotary shall appoint such assistants as may be necessary 
and authorized by said courts; and he and his assistants shall 
receive fixed salaries, to be determined by law and paid by 
said county; all fees collected in said ofhce, except such as 
may be by law due to the Commonwealth, shall be paid 
by the prothonotary into the county treastiry. Each court shall 
have its separate dockets, except the judgment docket which 
shall contain the judgments and liens of all the said courts, as 
is or may be directed by law. 

Criminal Courts in Philadelphia and Allegheny Counties. 

Section 8. The said courts in the counties of Philadelphia and 
Allegheny, respectively, shall, from time to time, in turn detail 
one or more of their judges to hold the courts of oyer and terminer 
and the courts of quarter sessions of the peace of said counties, 
in such manner as may be directed by law. 

Common Pleas Judges to be Justices of the Peace. 

Section 9. Judges of the courts of common pleas learned in 
the law shall be judges of the courts of oyer and terminer, quarter 
sessions of the peace and general jail delivery, and of the orphans' 
court, and within their respective districts shall be justices of 
the peace as to criminal matters. 

Judges of Common Pleas Courts may Issue Writs of Certiorari. 

Section 10. The judges of the courts of common pleas, within 
their respective counties, shall have power to issue writs of 
certiorari to justices of the peace and other inferior courts not 
of record, and to cause their proceedings to be brought before 
them, and right and justice to be done. 



278 APPENDIX. 

Justices of the Peace and Aldermen. 

Section 11. Except as otherwise provided in this Constitution, 
justices of the peace or aldermen shall be elected in the several 
wards, districts, boroughs and townships at the time of the 
election of constables by the qualified electors thereof, in such 
manner as shall be directed by law, and shall be commissioned 
by the Governor for a term of five years. No township, ward, 
district or -borough shall elect more than two justices of the 
peace or aldermen without the consent of a majority of the 
qualified electors within such township, ward or borough; 
no person shall be elected to such office unless he shall have 
resided within the township, borough, ward or district for one 
year next preceding his election. In cities containing over fifty 
thousand inhabitants, not more than one alderman shall be 
elected in each ward or district. 

Magistrates in Philadelphia. 

Section 12. In Philadelphia there shall be established, for 
each thirty thousand inhabitants, one court, not of record, 
of police and civil causes, with jurisdiction not exceeding one 
hundred dollars; such courts shall be held by magistrates whose 
term of office shall be five years, and they shall be elected on 
general ticket by the qualified voters at large ; and in the election 
of the said magistrates no voter shall vote for more than two- 
thirds of the number of persons to be elected when more than 
one are to be chosen; they shall be compensated only by fixed 
salaries, to be paid by said county; and shall exercise such 
jurisdiction, civil and criminal, except as herein provided, as 
is now exercised by aldermen, subject to such changes, not 
involving an increase of Jjivil jurisdiction or conferring political 
duties, as may be made by law. In Philadelphia the office 
of alderman is abolished. 

Fees, Fines and Penalties. 

Section 13. All fees, fines and penalties in said courts shall 
be paid into the county treasury. 

Appeals from Summary Convictions. 

Section 14. In all cases of summary conviction in this Com- 
monwealth, or of judgment in suit for a penalty before a magis- 
trate, or court not of record, either party may appeal to such 



APPENDIX. 279 

court of record, as may be prescribed by law, upon allowance 
of the appellate court or judge thereof upon cause shown. 

Election of Judges — Removal. 

Section 15. All judges required to be learned in the law, 
except the judges of the Supreme Court, shall be elected by the 
qualified electors of the respective districts over which they are 
to preside, and shall hold their offices for the period of ten years, 
if they shall so long behave themselves well ; but for any reason- 
able cause, which shall not be sufficient ground for impeachment, 
the Governor may remove any of them on the address of two- 
thirds of each House of the General Assembly. 

Voting for Judge of Supreme Court. 

Section 16. Whenever two judges of the Supreme Court are 
to be chosen for the same term of service each voter shall vote 
for one only, and when three are to be chosen he shall vote for no 
more than two; candidates highest in vote shall be declared 
elected. 

Priority of Judges' Commissions. 

Section 17. Should any two or more judges of the Supreme 
Cotirt, or any two or more judges of the court of common pleas 
for the same district, be elected at the same time, they shall, 
as soon after the election as convenient, cast lots for priority 
of commission, and certify the result to the Governor, who 
shall issue their commissions in accordance therewith. 

Compensation of Judges. 

Section 18. The judges of the Supreme Court and the judges 
of the several courts of common pleas, and all other judges 
required to be learned in the law, shall at stated times receive 
for their services an adequate compensation, which shall be fixed 
by law, and paid by the State. They shall receive no other 
compensation, fees or perquisites of office for their services 
from any source, nor hold any other office of profit under the 
United States, this State or any other State. 

Residences of Judges. 

Section 19. The judges of the Supreme Court, during their 
continuance in office, shall reside within this Commonwealth; 
and the other judges, during their continuance in office shall 



280 APPENDIX. 

reside within the district for which they shall be respectively 
elected. 

Chancery Powers of Common Pleas Courts. 

Section 20. The several courts of common pleas, besides the 
powers herein conferred, shall have and exercise within their 
respective districts, subject to such changes as may be made 
by law, such chancery powers as are now vested by law in 
the several courts of common pleas of this Commonwealth, 
or as may hereafter be conferred upon them by law. 

Supreme Court — Extra Judicial Duties — Court of Nisi Prius 
Abolished. 

Section 21. No duties shall be imposed by law upon the 
Supreme Court or any of the judges thereof except such as are 
judicial, nor shall any of the judges thereof exercise any power 
of appointment except as herein provided. The court of nisi 
prius is hereby abolished, and no court of original jurisdiction 
to be presided over by any one or more of the judges of the 
Supreme Court shall be established. 

Orphans' Courts — Auditing of Accounts — Registers' Courts 
Abolished. 

Section 22. In every county wherein the population shall 
exceed one hundred and fifty thousand the General Assembly 
shall, and in any other county may, establish a separate orphans' 
court to consist of one or more judges who shall be learned in the 
law, which court shall exercise all the jurisdiction and powers 
now vested in or which may hereafter be conferred upon the 
orphans' courts, and thereupon the jurisdiction of the judges of 
the court of common pleas within such county, in orphans' 
court proceedings, shall cease and determine. In any county 
in which a separate orphans' court shall be established, the 
register of wills shall be clerk of such court and subject to its 
directions in all matters pertaining to his office ; he may appoint 
assistant clerks, but only with the consent and approval of 
said court. All accounts filed with him as register or as clerk 
of the said separate orphans' court shall be audited by the 
court without expense to parties, except where all parties in 
interest in a pending proceeding shall nominate an auditor 
whom the court may, in its discretion, appoint. In every 



APPENDIX. 281 

county orphans' courts shall possess all the powers and juris- 
diction of a registers' court, and separate registers' courts are 
hereby abolished. 

Style of Process. 

Section 23. The style of all process shall be "The Common- 
wealth of Pennsylvania." All prosecutions shall be carried on 
in the name and by the authority of the Commonwealth of 
Pennsylvania, and conclude "against the peace and dignity of 
the same." 

Right of Appeal in Criminal Cases. 

Section 24. In all cases of felonious homicide, and in such 
other criminal cases as ma^'' be provided for by law, the accused 
after conviction and sentence may remove the indictment, 
record and all proceedings to the Supreme Court for review. 

Vacancies in Court — How Filled. 

Section 25. Any vacancy happening by death, resignation 
or otherwise, in any court of record, shall be filled by appoint- 
ment by the Governor, to continue till the first Monday of 
January next succeeding the first general election which shall 
occur three or more months after the happening of such vacancy. 

Laws Relating to Courts to be Uniform — Special Courts 
Forbidden. 

Section 26. All laws relating to courts shall be general and 
of uniform operation, and the organization, jurisdiction and 
powers of all courts of the same class or grade, so far as regulated 
by law, and the force and effect of the process and judgments of 
such courts, shall be uniform; and the General Assembly is here- 
by prohibited from creating other courts to exercise the powers 
vested by this Constitution in the judges of the courts of common 
pleas and orphans' courts. 

Submission of Issues of Fact. 

Section 27. The parties, by agreement filed, may in any civil 
case dispense with trial by jury, and submit the decision of such 
case to the court having jurisdiction thereof, and such court 
shall hear and determine the same; and the judgment thereon 
shall be subject to writ of error as in other cases. 



INDEX. 



"Active," case of the, 127 
Acts of assembly: 

disallowed, 76, 82, 93, 97, 
99, 170, 175, 177, 229, 
231, 249 
submission to king in 
council, 50, 82 
Ad quod damnum, 243 
Addison, Alexander: 

characteristics of, 141 
impeached, 142 
Admiralty : 

chancery jurisdiction in, 

181 
federal court of, 128 
provincial council as court 

of, 68 
state court of, 126 
vice admiralty court es- 
tablished, 69 
Affirmations, 85, 86 
Allen, W'ilHam, 108, 190 
Amsterdam, colony of the city 

of, 5 
Andros, Governor, 23, 164, 216 
Appeals : 

from Dutch courts, 7 

to high court of errors, 

128, 134, 136 
to privy council, 71, 82, 84 
to provincial council, 65 
under the Duke of York, 
17, 29 
Arbitration, 15, 48 
Assheton, Robert, 113, 175, 

231 
Assizes, court of, 16, 29, 163 
Attachment, 37 
Attorney general, 113 



Attomeys-at-law : 

early bar, 110-115 
examinations, 119 
students, 117 
subsequent to Revolution, 
154 

Bar (see Attorneys-at-law) 
Binney, Horace, 155, 208 
Blackstone's Commentaries, 

119 
Brackenridge, Judge H. H., 

142, 147 
Bradford, Judge William, 131 
Butler county, first court held 

in, 151 

Carr, Sir Robert, 9, 11 
Censors, council of, 124, 129 
Chancery, court of, 179, 193 
Charles II, 40 
Charter: 

of privileges of 1701, 73, 

184 
to William Penn, 41 
Chew, Benjamin, 108, 121, 134 
Clark, William, 218 
Circuit courts, 135, 138 
Codes, colonial tendency 

toward, 10, 14 
Conxmission to revise the civil 
code: 

appointment, 155 
report on equity juris- 
diction, 196 
on orphans' court, 235 
Commissions of judges, 102 
Common law, as a subsidiary 
system in the colonies, 13, 
103 



284 



INDEX. 



Conditional verdict, 28, 208 

Constable, 19 

Constitution of 1874, judiciary 

article, 275 
Constitutional convention: 

of 1776, 122, 123 

of 1790, 132 
Coroner, 73 

Counties, Penn's division, 47 
Court house: 

Philadelphia, 108 

Westmoreland county, 
151 
Criminal law, 52, 56, 86, 90, 
131 

Deal court, 35 

Decedents' debts, sale of land 

for payment of, 226 
Decedents' estates (see Or- 
phans' court and Registers' 
court) 
Dickinson, John, 117, 120, 129, 

130 
Disorder, complaints against, 

88 
District court of Philadelphia, 

137 
Divorce: 

acts of 1700 and 1705, 100 
in the Dutch period, 6 
private acts, 101 
under Duke of York's 
laws, 99 
Doan, Aaron, outlawry of, 130 
Ducking stool, 89 
Duke of York (James II) : 
proprietorship of, 9 
conveys territory to Penn, 
41 
Duke of York's laws, 10, 23, 

25, 162, 216 
Dutch : 

court on the Delaware, 3 
West India Company, 3, 5 



Ejectment, 76, 204 
Eminent domain, 245 
English: 

citation of cases forbidden, 

150 
conquest of New Nether- 
lands, 9 
statutes in force, 13, 14, 
103 
Equity jurisprudence : 

colonial difficulties, 159 
com.mon-law forms, 190, 

201 
confined to Supreme 

Court, 176 
constitution of 1776, 192 
constitution of 1790, 194 
county courts, 167 
court of assizes, 163 
Keith's court, 177, 179, 

181 
petitions against, 184 
private acts, 191 
provincial cotmcil, 166 
recommendations of com- 
missioners in 1835, 196 
resolutions of general as- 
sembly, 185 
rules of Suprenie Court, 

200 
Welsh courts as a pre- 
cedent, 172, 174 
Erie and Bradford counties: 

road system., 267 
Evans, Governor, 80 
Examinations for the bar, 119 
Execution, in civil cases, 55 
Executions, public, 131 
Executive clemency, 131 

Finne, Long, 31 
Fletcher, Benjamin, 50, 222 
Frame of government, 42 
Francis, Tench, 115 



INDEX. 



285 



Franklin, Benjamin, 107, 129 
Friends, society of : 

afifimiations, 85 

arbitration, 49 
Fundamental laws, 45 

Gambling contract, 39 

Gibson, John Bannister, 153 

Golf, 246 

Gookin, Governor, 81, 220 

Gordon, Patrick, 183, 185 

Grand jury, 90 

Guest, Chief Justice, 171 

Hamilton, Andrew, 115, 188, 

189 
High court of errors and 

appeals, 128, 134, 136 
Highways (see Roads) 
Holme, Thomas, 250 
Hopkinson, Francis, 119, 127 

Impeachment : 

Judge Addison, 142 
Judge Hopkinson, 127 
Chief Justice Moore, 59 
Supreme Court justices, 
143 

Jacquet, Jean Paul, 3 
James II (see Duke of York) 
Jealousy of the courts, 139 
Jones, Joel, 155 
Judges: 

commissions, 102 

fined for giving wrong 

. judgment, 64 
fined for non-attendance, 

47 
fined for smoking in court, 

53 
forbidden to cite English 
cases, 150 



Judges {cont.) : 

required to file opinions 

in writing, 136 
salaries, 104, 134 
term of office, 98, 123, 
133, 149 

Judgments, entered in kind, 36 

Judicial com.mittee of privy 
council, 85 

Judicial districts, 7, 133 

Judiciary : 

constitution of 1776, 123 
constitution of 1790, 132 
constitution of 1874, 275 

Jury: 

of seven, 20 
trial without, 55 
viewers, 253, 255, 260 

Justices of peace, civil juris- 
diction, 105, 157 

Keith, Sir William: 

dispute with collector of 

customs, 96 
establishes court of chan- 
cery, 177 
restores English criminal 
law, 86 
Kinsey, John, 107, 180, 183 

'La Grange, Arnoldus, 27 
Land : 

liable for debts, 28, 226 
six per cent allowance for 
roads, 249 
Laussat, Anthony, 196 
Lawyers (see Attorneys-at-law) 
Liquor licenses, 18 
Lloyd, David, 70, 75, 79, 92, 

107, 112, 172, 177, 189 
Logan, James, 49, 79, 107, 180, 
185, 187 



286 



INDEX. 



McKean, Thomas, 125, 139, 

152, 190 
Mann, Abraham, 30, 61, 113 
Markham, William, 42, 69 
Moll, John, 30, 46 
Mompesson, Roger, 78, 104 
Moore, John, 96 
Moore, Nicholas, 59 
Mortgage, foreclosure of, 38 

Negligence, 38 

Negroes, court for trial of, 105 

New Amstel, 5, 7, 9 

New Castle, 22, 47 

New Netherlands, 9 

Nicholls, Governor, 11, 12 

Nisi prius, 129, 135 

Oaths, judicial, 86 
Ordinance, courts established 

by, 80 
Orphans' court, 57, 82, 225, 
230, 236, 239 

early practice, 231 
equity jurisdiction, 232 
of London, 223 
report of commissioners 
to revise civil code, 235 
Outlawry, process regulated, 
131 

Pappegoya, Jeuffro Armgart, 

25 
Pardons, 87, 131 
Partition, 182, 199 
Passmore, Thomas, 143 
Peacemakers, 48 
Penn, William, 40, 42, 46, 48, 

51, 74, 166, 226, 248, 250 
Petit treason, 91 
Philadelphia, 108, 138, 154, 

250 
Piracy, 69, 71 



Pittsburg, 136, 138, 266 
President Judge, 105 
Printz, John, 2, 25 
Prisons, 56 

Privy council appeals, 72, 84 
Probate, 214, 222 
Procedure : 

under Duke of York, 19, 

29, 35 
under William Penn, 44, 
45, 49, 52, 54 
Provincial council: 

admiralty jurisdiction, 68 
as principal court, 62-67 
equity jurisdiction, 169, 

178 
road matters, 251 
Provincial court (see Supreme 
Court), 57, 67 

Quakers : 

affirmations, 85, 86 

arbitration, 48 

Massachusetts laws 
against, 12 
Quarry, Robert, 69 

Rawle, William, 155 
Reed, Joseph, 117, 129 J . 
Register general, 217 -"' 
Register's court, 220,"* 236, 239 
Reviews of provincial roads, 

258 
Revision of civil code, 155, 

197, 236, 259 
Roads : 

act of 1700, 254 

act of 1836, 259 

borough streets, 267 

classes of, 256 

consequential damages, 
268 



INDEX. 



287 



Roads [cont.) : 

in England in eighteenth 

century, 241 
in the Nev/ Netherlands, 

245 
jurisdiction of provincial 

council, 251 
local acts, 262 
measure of landowners' 

damages, 269 
Penn's provisions, 248 
recent legislation, 269 
reviews, 258 
state roads, 261 
streets in Philadelphia, 

263 
streets in Pittsburg, 266 
imder the Duke of York, 

247 

vocation, 260 

widening, 260 

Robinson, Patrick, 61, 113, 219 

Ross, George, 125 

Rules of court, 53 

Schepens, 5 
Schout, 5 

Scolds, common, 89 
Sessions, courts of, 17 
Set-off, 3, 54, 208 
Shippen, Edward, 129, 141 
Six per cent allowance for 
roads, 249 



Slander, 35 

Stocks, 54 

Streets (see Roads) 

Superior Court, 157 

Supreme Court, 80, 94, 98, 

136, 137, 138, 176 
Suspension of courts during 

Revolution, 125 
Swedish court, 2 

Tilghman, Edward, 118, 152 

Tilghman, William, 152 

Tinicum Island, 25 

Town court, 19 

Treason trials, 126 

Trials in banc abolished, 136 

Upland court, 7, 34 

Verdict, conditional, 28, 208 

Western Pennsylvania, primi- 
tive courts of, 151 
Westmoreland county, 151 
Wharton, T. I., 155 
White, j ohn, 1 13 
WhorekiU, 7, 35, 47 
Wilson, James, 126, 193 
Witchcraft, 67 

Yeates, Jasper, 148 

Zenger, Peter, 116 




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